01A43541_r
11-23-2004
Marie M. Ryan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marie M. Ryan v. United States Postal Service
01A43541
November 23, 2004
.
Marie M. Ryan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43541
Agency No. 1K-221-0021-04
DECISION
Complainant filed an appeal with this Commission from a final decision
by the agency dated March 24, 2004, finding that it was in compliance
with the terms of the June 7, 2002 settlement agreement into which the
parties entered.
The settlement agreement provided, in pertinent part, that:
(2) The Agency shall provide Complainant with a qualified interpreter
for work related situations, including, but not limited to:
investigatory interviews which may lead to discipline;
discussions with a supervisor on job performance or conduct;
training (class room and on-the-job);
grievance or disciplinary process;
EAP programs;
EEO counseling;
in critical elements of the selection process, such as during testing
and interviews;
employee orientations;
scheduled service and safety talks,1
open discussions;
question and answer sessions following safety and/or service talks or
films that may be shown;
CFC and saving bond drive kickoff meetings;
the filing or meetings concerning an employee's OWCP claim;
diversity or cultural presentations (i.e. Black History Month, Deaf
Awareness Week).
. . . .
1 Note: While the Agency will make the effort to contact an interpreter,
the Agency is not obligated to provide interpreter for issues requiring
immediate attention, such as safety and well-being issues, mail missing a
dispatch, out of sequence mail to distribution changes. If an issue which
requires immediate attention is an issue which affects the performance
of the entire Northern Virginia Performance Cluster, management will
address the issue at a follow-up scheduled service talk wherein a
qualified interpreter will be provided.
(3) The Agency shall not hold �separate but equal� service talks for
deaf and hearing employees. Complainant shall not be segregated from
her pay location during any talks, meetings or training.
. . . .
Managers shall be trained on the Agency's duty to provide reasonable
accommodation under the law.
By letter to the agency dated January 16, 2004, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that on December 8, 2003, she was denied an
interpreter while discussing medical documentation with her supervisor.
Complainant further alleged that on December 9, 12, 17, 19, and 24, 2003,
and on January 6, 2004, complainant was not provided proper training
for seal clerk work. Complainant notes an interpreter was available
on these dates. On December 17, 2003 and January 6, 2004, complainant
was ordered to work in the south dock as a seal clerk without the proper
training provided with an interpreter. Complainant further alleged that
on December 22, 2003, complainant was not provided with an interpreter for
the safety/service talks. Lastly, complainant states that on December 23,
2003, she was segregated from her pay location for safety/service talks.
In its March 24, 2004 decision, the agency concluded that no breach of the
settlement agreement occurred. The agency found that the safety service
talks on December 22 and 23, 2003, were in reference to a national terror
alert, and required the agency to inform employees immediately regarding
the elevated warning level. The agency determined that complainant
was given a copy of the safety service talk and read the notice in the
presence of her supervisor (S1), who asked her if she had any questions.
On December 17, 2003, the agency found that a different supervisor (S2)
assigned complainant to the seal clerk position, who did not know that
complainant needed training by an interpreter. The agency found that
complainant did not inform S2 that she needed training. The agency
discovered that S2 does not recall asking complainant to assist with
seal clerk duties on January 6, 2004, but S2 spoke with another agency
official and the two decided that complainant should be provided with
the training in the future.
On appeal, the agency states that with respect to the training for seal
clerk position, that complainant had been scheduled for training with an
interpreter on several occasions, but due to a number of unscheduled
absences, the agency was unable to arrange for an interpreter for
this training. The agency repeats its decision that complainant will
be provided with this training with an interpreter in the future.
Additionally, the agency argues that sign-in sheets and complainant's
personnel records indicate that she has not been segregated from her pay
location for safety/service talks. The agency concludes that no breach
of the settlement agreement has occurred.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules
of contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon O v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In the instant case, we find the settlement agreement provides that when
the matter at hand requires immediate attention no interpreter need be
provided. Complainant does not dispute that the topic of the safety
service talks on December 22 and 23, 2003, concerned national threat
levels and required that employees be alerted immediately. Complainant
also does not dispute the agency's contention that her personnel records
(Employee Everything Report) show that she has not been segregated from
her pay location as alleged.
Further, we find nothing in the settlement agreement provides that
complainant will be entitled to training. Rather, the agreement provides
that if training is provided, complainant will have an interpreter
at that time. We note that complainant does not refute the agency's
contention that she failed to notify her acting supervisor of her need
for an interpreter for on-the-job training with respect to the seal clerk
duties that she was ordered to perform on December 17, 2003. We observe
that the agency says, as late as its statement on appeal dated June 22,
2004, that it will provide this training to her �in the future.� Under
the circumstances, we find that complainant has failed to show breach
of the settlement agreement.
We therefore AFFIRM the agency's determination that no breach of the
settlement agreement occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 23, 2004
__________________
Date