01a33817_r
12-03-2003
Victoria James, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Victoria James v. United States Postal Service
01A33817
December 3, 2003
.
Victoria James,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33817
Agency No. 4-C-400-0017-03
DECISION
Upon review, the Commission finds that the agency's decision not to
reinstate complainant's complaint of unlawful employment discrimination
that the parties had settled is proper. See 29 C.F.R. � 1614.504.
On December 13, 2002, the parties entered into a settlement agreement
resolving the complaint. The settlement agreement provided, in pertinent
part, that:
Lunch spot and comfort break will be negotiated with the counselee
and management.
Route adjustments will be negotiated with counselee's input.
Christ Temple site is an agreeable comfort break spot on the front
end of route; comfort break on Saturday and the back end of route will
be negotiated.
Lunch break should be within � mile of Southwestern Parkway and Sunset
Avenue (808, Wendy's and KFC approved; pending mileage check).
Thereafter, on January 10, 2003, complainant alleged that the agency
breached the settlement agreement. On May 7, 2003, the agency issued
its decision finding that it did not breach the settlement agreement.
The Commission has held that settlement agreements are contracts between
the complainant and the agency and it is the intent of the parties
as expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984).
The record reveals that after complainant alleged noncompliance with the
settlement agreement, the agency took steps to cure the alleged breach of
the settlement agreement. The record indicates that on January 30, 2003,
a station manager offered complainant the opportunity to give her input
on changing her route when he inspected the route, but she declined any
changes until after a �period� of time. On the same date, complainant
asked for a special route inspection, but it was denied because her route
did not qualify for a special inspection based on established agency
procedures. The agency indicated that many adjustments were made to
complainant's route, a delivery was cut, a relay was removed and ten stop
points were removed. The agency also stated that complainant's lunch
break was negotiated in good faith. Specifically, the agency indicated
that complainant was actually authorized to have her lunch breaks at the
places beyond � mile of Southwestern Parkway and Sunset as specified in
the agreement provided she return back to her route in 30 minutes.
On appeal, complainant contends that her subsequent route changes
were in violation of the settlement agreement. However, complainant
does not dispute the station manager's statement that on January 30,
2003, she was, in fact, offered the opportunity to give her input but
declined, requesting that no changes be made to her route. Upon review,
the Commission finds that the settlement agreement only provides for the
parties' negotiation with complainant's input, and does not provide that
her input be accepted to change her route. Thus, the Commission finds
that the alleged route changes are beyond the scope of the settlement
agreement. It is noted that complainant does not contest her lunch
breaks on appeal.
On appeal, complainant also argues that she was subsequently denied
a special inspection and was subjected to her route being changed and
disciplinary actions, including increase of overtime. The Commission
finds that since these matters are beyond the scope of the settlement
agreement and are subsequent acts of alleged retaliation, complainant
should contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105 if
she wishes to pursue a separate complaint of discrimination under 29
C.F.R. � 1614.106.
Accordingly, the agency's decision is hereby AFFIRMED.
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
December 3, 2003
__________________
Date