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 0120090037