01A22987_r
07-26-2002
Rosalinn M. Giang, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rosalinn M. Giang v. United States Postal Service
01A22987
July 26, 2002
.
Rosalinn M. Giang,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22987
Agency No. 1G-7310035-99
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) dated March 20, 2002, finding that it was in compliance
with the terms of a August 11, 1999 settlement agreement. 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:
[Complainant] will continue to be assigned T-3 FSM [flat sorter machine]
through September 10, 1999. [Complainant] will be provided a copy of
the Threat Assessment Team's report, if one exists.
[Person A] will review [complainant's] work assignment situation after
30 days and act according to medical documentation.
[Person A] will also counsel with [complainant] and [Employee 1], and
three witnesses to the alleged incident. A locker will be provided for
[complainant] when one becomes available.
By telephone call to the agency on June 24, 2000, complainant alleged
that the agency breached the settlement agreement, and requested that
the agency reinstate her EEO complaint. Subsequently, in a letter to the
agency dated July 20, 2000, complainant alleged that the agency removed
her from Tour 3 to another work area in June 2000; never provided her
with a copy of the Threat Assessment Team's Report; did not act according
to the medical documentation provided by complainant; and Person A never
counseled her, as well as only counseled two of the three witnesses to
a June 13, 1999 altercation.
In a final decision dated July 27, 2000, the agency found that complainant
failed to file her breach claim in a timely manner. Nevertheless,
the agency determined that it did not breach the terms of the agreement.
On appeal, the Commission determined that the matter of complainant's
reassignment to a work area outside Tour 3 in June 2000, was beyond the
purview of the terms of the agreement. Further, the Commission determined
that complainant's claim that the agency did not adhere to her doctor's
order was not timely raised. Finally, the Commission determined that
it was unable to assess complainant's claim that the agency breached
the agreement by not providing her with a copy of the Threat Assessment
Team's report because the record did not indicate whether any Threat
Assessment Team report existed and whether it was provided to complainant.
Similarly, the Commission concluded that it could not ascertain from
the record whether or not the agency afforded complainant the counseling
promised in the agreement. Consequently, the Commission affirmed the
agency's final decision in part, and vacated it in part. On remand,
the Commission ordered the agency to provide documentation indicting
whether a Threat Assessment Team report existed and whether the agency
provided complainant with a copy of the report and provide documentation
indicating whether Person A counseled complainant and three witnesses to
the June 13, 1999 altercation. Giang v. United States Postal Service,
EEOC Appeal No. 01A05856 (December 18, 2001).
In the final decision that is the subject of the instant appeal, the
agency concluded that it did not breach the agreement. The agency
determined that no Threat Assessment Team report was made; and that Person
A counseled complainant and the three witnesses regarding the alleged
incident a week after the parties entered in the settlement agreement.
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 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).
The Commission finds that the agency properly determined that it did not
breach the settlement agreement regarding the provisions relating to a
Threat Assessment Report, and the counseling of complainant and three
witnesses. The Commission notes that the record contains a affidavit
wherein Person A attests that she interviewed complainant, Employee 1,
and three witnesses about the relevant incident one week after the agency
and complainant entered into the settlement agreement. Consequently,
we determine that the agency counseled complainant, Employee 1, and three
witnesses to the incident in accordance with the terms of the agreement.
In her affidavit, Person A also attests that she did not receive a
Threat Assessment Report. The record also contains an affidavit from the
Employee and Workplace Intervention Analyst wherein she states that she
has reviewed all records in her custody and found no Threat Assessment
Team report regarding complainant. Consequently, we determine that
the agency did not issue a Threat Assessment Team report; therefore,
we find that the agency did not breach this provision of the agreement.
Accordingly, the Commission AFFIRMS the agency's finding of no breach
of the settlement agreement.
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
July 26, 2002
__________________
Date