0120070217
06-21-2007
Ava J. Boczor, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ava J. Boczor,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070217
Agency No. 4K230014006
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated September 7, 2006, finding that it was
in compliance with the terms of the June 13, 2006 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:
(3) the agency's counsel would hand deliver complainant's FMLA medical
documentation to the FMLA coordinator's office no later than June 16,
2006 and the coordinator's written response to complainant identifying
any deficiencies in documentation would be issued no later than June 30,
2006.
By letters to the agency dated July 28, 2006 and August 7, 2006,
complainant alleged that the agency was in breach of the settlement
agreement, and requested that the agency specifically implement its terms.
Complainant claims that the agency failed to timely issue the written
response regarding deficiencies in her FMLA documentation.
In its FAD, the agency concluded that the FMLA coordinator successfully
complied with the terms of the agreement when it issued the response
dated June 30, 2006. The agency reasoned that the response was issued
as agreed, regardless of the dates on the attachments to the response
or the date complainant received the response. The agency stated that
the discrepancy between the date of the response and the dates on the
attachments may have been an error. Complainant appealed the FAD to
the Commission.
On appeal, complainant specifically claims that she did not receive the
response until after July 5, 2006. Additionally, complainant questioned
the validity of the June 30 date on the FMLA coordinator's response
because of the dates on the two documents attached to the response.
The first document is a copy of Publication 71, dated July 1, 2006.
The second is an FMLA data report on the complainant dated July 2, 2006.
In response to complainant's appeal, the agency reasserted its position
as stated in the FAD.
As a preliminary matter, we note that on appeal, we review the FAD issued
without a hearing de novo. 29 C.F.R. � 1614.405(a). 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).
We note that complainant has the burden of proof to show that the agency
breached the settlement agreement. See Vega v. U.S. Postal Service,
EEOC Appeal No. 01986613 (June 30, 2000); Pearson v. U.S. Postal Service,
EEOC Appeal No. 01A02918 (July 6, 2001), req. for reconsid. denied, EEOC
Request No. 05A10957 (October 19, 2001). The main thrust of complainant's
argument is that the receipt date of the response and the dates on
the attachments indicate the response was not issued before June 30.
The record, however, contains an agency response that is dated June 30,
2006. Based on the plain meaning of the term in the settlement agreement,
we find that the complainant failed to prove the agency breached the
term in question. While the attachments dated July 1 and July 2 are
troubling, it is not enough to sway the Commission to find the agency
did not timely issue its response. Moreover, even if complainant were
found to be correct that the agency's response was issued after June 30,
2006, the Commission has long held that the failure to satisfy a time
frame specified in a settlement agreement does not prevent a finding of
substantial compliance with a settlement agreement, especially when, as
here, all required actions were subsequently completed. See Day v. United
States Postal Service, EEOC Appeal No. 01A10210 (September 11, 2002).
Accordingly, we affirm the agency's FAD finding that it complied with
the terms 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
_____6/21/07______________
Date
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0120070217
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070217