0120092785
12-10-2009
Monica Garate,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092785
Agency No. 4F926009508
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated May 27, 2009, finding that it was in
compliance with the terms of the January 31, 2008 settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(1) [Management] agrees to resend1 [sic] the Letter of Warning
dated 8/31/2007. The four (4) day suspension will remain in her record.
[Complainant] agrees not to seek to resend [sic] the four day suspension
as it was settled with the progressive discipline procedure.
(2) [Management] agrees to discuss with [complainant] and her
representative any and all adverse behavior subject to discipline before
progressive discipline is initiated in order to be fair for the life of
the Suspension dated 9/27/2007.
By letter to the agency dated December 24, 2008, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Complainant's specific
allegations of breach are unclear. In her December 2008 statement
complainant indicated that the breach consisted of the following:
"I received a letter of suspension for 14 days for clock ring errors,
and for misconduct and for failure to notify the office you [sic] would
be out post 1800." In subsequent correspondence dated February 27,
2009, complainant stated "On 12-22-08, I was issued a 14 day suspension.
In issuing of the suspension, the suspension dated 9-27-2007 was cited as
a past element. The Agency failed to adhere to the settlement agreement
of 1-31-08. Agency never discussed the adverse behavior subject with
my representative, John Ramirez."
In its May 27, 2009 FAD, the agency concluded that it had not breached
the agreement. The FAD found that complainant was provided a different
representative than the one she named in her February 2009 letter
but that the agreement did not mandate that complainant be provided a
specific representative, only that she be provided a representative.
The FAD further found that it was appropriate to reference the 4-day
suspension when administering the December 2008 14-day suspension because
the agreement specifically acknowledged that possibility when it mentioned
that "the four day suspension will remain" in complainant's record.
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 that complainant has not met her burden of
establishing, by a preponderance of the evidence, that the agency breached
the agreement. If complainant is alleging that the breach occurred when
she was given a 14-day suspension, she has not shown that the agreement
did not allow for any future discipline. If complainant is alleging that
the breach occurred when the agency referenced the prior 4-day suspension
when administering the 14-day suspension, complainant has not shown how
the agency's actions amount to a breach of the agreement. If complainant
is alleging that the breach occurred when she was not allowed to have
the representative of her choice present, she has again not shown how
the agency's actions amount to a breach since the agreement does not
state that complainant would be entitled to a specific representative
and the Postmaster (RMO) stated in a statement dated April 27, 2009,
that complainant was provided a representative. Accordingly, we AFFIRM
the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 10, 2009
__________________
Date
1 It appears from the context that the agreement intended to say "rescind"
instead of "resend".
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0120092785
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092785