01A30438_r
03-17-2003
Trisha L. Sealy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Trisha L. Sealy v. United States Postal Service
01A30438
March 17, 2003
.
Trisha L. Sealy,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30438
Agency No. 2-A-1670-92
DECISION
Complainant appeals to the Commission from the agency's September 19,
2002 decision finding it had not breached the settlement agreement.
On July 22, 1993, the parties resolved complainant's complaints by
entering into a settlement agreement which provided, in pertinent part,
that complainant would receive the following:
Based on my medical restriction, I will be retained in a position that
is in accordance with my medical restriction. If a position becomes
available, and I am eligible/qualified I can apply. If I am able to be
included on the Promotional Eligibility Register (PER), the applicable
procedures will apply. [Mr. X], Maintenance Engineering Specialist,
will assist me in the PER qualifications process.
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).
By letter to the agency dated July 3, 2002, complainant alleged that the
agency breached the settlement agreement. Specifically, complainant
argues that the agency breached the settlement agreement when she was
"removed from a position awarded [her] due to [her] settlement; Moreover,
attempts have been made to remove [her] altogether from the premises
in the last thirty days." She further alleges that the agency denied
her promotional/advancement opportunities, and denied equal pay in her
new position. She further alleges that she was denied, on May 31, 2002,
placement on the PER. Finally, she alleges that she has been harassed
and unfairly reprimanded.
The record indicates that the parties entered into the above referenced
settlement agreement on July 22, 1993. Complainant subsequently filed
a grievance on the same matter that prompted her to file the initial
EEO complaint. The grievance resulted in a settlement agreement dated
July 31, 1997, which provided, in pertinent part, that complainant would
receive the following:
Management will create and slot the grievant in a level PS-5, [primary]<1>
Maintenance Support Clerk position with the principal assignment area
of Maintenance (Maintenance Control); it is further agreed that this
position will be in excess to the compliment and will be considered a
secondary Rehab position consistent with the grievant's present physical
limitation. [emphasis in original] The grievant will maintain this
position until such time as the grievant bids or otherwise voluntarily
vacates the position at which time it will be reverted. It is also agreed
that the grievant will be compensated with a one-time cash payment of
"Three Thousand Dollars" ($3000.00).
The agency argues that it is not in breach of the settlement agreement.
The Commission notes that it has no jurisdiction to adjudicate breach of
settlement agreement matters which resulted from another administrative
process, namely, a grievance. With regard to the July 22, 1993 settlement
agreement, complainant has not shown breach.<2> The settlement agreement
states that complainant will be "retained in a position that is in
accordance with [her] medical restrictions." However, when complainant
entered into the subsequent settlement agreement and voluntarily accepted
the new position, she relieved the agency from further duty to perform
under that particular provision of the settlement agreement. The only
other consideration given complainant is that Mr. X "will assist [her]
in the PER qualifications process." Complainant does not argues that
Mr. X did not assist her.
Any other allegations raised appear to relate to the settlement agreement
which resulted from filing the grievance. Complainant may, however, be
attempting to raise subsequent acts of discrimination. According to 29
C.F.R. � 1614.504(c), allegations that subsequent acts of discrimination
violate the settlement agreement shall be processed as a separate
complaint. Therefore, if that was complainant's intention, complainant
should contact an EEO Counselor in accordance with the regulations.
We find that complainant has failed to show breach of the settlement
agreement. The agency's decision finding no breach of the settlement
agreement is AFFIRMED for the reasons set forth herein.
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
March 17, 2003
__________________
Date
1The signed settlement agreement has the word "primary" handwritten in
the margin the circles and arrows to the text. It is apparent that the
word "primary" was intended to describe the position, but in what order
of the text is unclear.
2The Commission notes that it is not making a determination on
complainant's timeliness of raising an allegation of breach of settlement
agreement, nor is the Commission making a determination on complainant
being barred from raising the allegation due to the doctrine of laches.