Sandra German, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 27, 2009
0120090037 (E.E.O.C. Jan. 27, 2009)

0120090037

01-27-2009

Sandra German, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Sandra German,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120090037

Agency No. 4F926002897

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated August 29, 2008, finding that it

was in compliance with the terms of the February 8, 2000 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 complainant

would receive and her leave would be re-credited and that:

(c) In accordance with documentation to support complainant's

permanent and stationary restricted medical status, the agency will

complete and offer to the complainant a rehabilitation job offer in

compliance with her imposed medical restrictions. The complainant

will be reassigned to the clerk craft upon OWCP approval and her

acceptance of the job offer in accordance with the National Agreement.

Complainant's position will be Accountable Mail/Nixie Clerk, at the

work location described in the Limited Duty Job offer dated July 9,

1997 which is attached to this settlement agreement.

(9) The parties to this agreement agree and pledge to cooperate and

communicate in good faith and abide by the terms herein.

By letter to the agency dated July 31, 2008, complainant alleged that

the agency was in breach of the settlement agreement, and requested that

the agency specifically implement its terms. Specifically, complainant

alleged that the agency removed her from her rehabilitation job and gave

her a new assignment and the agency did not do this in good faith.

In its August 29, 2008 FAD, the agency concluded it was not in breach of

the agreement. The agency explained that there was a restructuring in

the Winter of 2007 and many clerk positions were eliminated. City wide,

the position of nixie clerk was completely eliminated, and the facility

where complainant worked lost 2 positions one of which was complainant's.

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).

The Commission has held that where an individual bargains for a position

without any specific terms as to the length of service, it would be

improper to interpret the reasonable intentions of the parties to include

employment in that exact position ad infinitum. See Holley v. Department

of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Papac

v. Department of Veterans Affairs, EEOC Request No. 05910808 (December 12,

1991); see also Parker v. Department of Defense, EEOC Request No. 05910576

(August 30, 1991). In addition, the Commission has held that there is no

breach of a settlement agreement "where an individual has been assigned to

a position pursuant to a settlement agreement, has held the position for a

period of time, and then is excised out of the position because of agency

downsizing that was not anticipated at the time of the agreement." Gish

v. Department of the Army, EEOC Appeal No. 01950923 (August 14, 1995).

In the instant case, the Commission finds that the settlement agreement

was signed in 2000. Seven years later there was a restructuring

which could not have been predicted when the agreement was signed.

If complainant is now alleging that the agency is not accommodating

her restrictions, she may contact an EEO counselor regarding such

matters. However, the Commission finds that the agency is not in breach

of the settlement agreement.

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

January 27, 2009

__________________

Date

2

0120090037

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

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