0120121026
05-04-2012
Anthony Chioffe, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Anthony Chioffe,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120121026
Agency No. 4H327016902
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated November 23, 2011, finding that it was in compliance with the terms of the 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.
BACKGROUND
At the time of the events at issue, Complainant worked for the Agency as a modified letter carrier in Boca Raton, Florida.
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On February 23, 2004, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1) The Complainant will perform VOMA duties as his modified letter carrier position to the extent that such work is available in the Boca Raton Installation.
(2) The Complainant's schedule will be 7:00 a.m. to 3:30 p.m. and he will have Sunday and Saturdays as his scheduled days off.
(3) The Complainant will be given a revised offer of modified assignment to reflect the VOMA and administrative duties he performs and his schedule.
(4) Nothing in this agreement is intended to abridge management's rights under the collective bargaining agreement including making reasonable schedule changes based on valid operational needs of the Postal Service.
On January 26, 2011, nearly seven years after the agreement went into effect, Complainant contacted an EEO counselor and alleged a breach of the agreement. Although not altogether clear, it appears that Complainant is alleging that he was scheduled to have his modified position re-evaluated under the Agency's National Reassessment Process (NRP), and because he believed he would have been taken out of his position, he retired effective November 1, 2010. Complainant appears to allege that the Agency forced him into retirement in violation of the settlement agreement.
In its November 23, 2011 FAD, the Agency concluded it was not in breach of the agreement. The Agency indicates that Complainant was scheduled for a meeting under the National Reassessment Process, but voluntarily retired on November 1, 2010, before the meeting was held. Prior to his retirement, the Agency stated that Complainant performed VOMA duties as provided for in the settlement agreement.
In his appeal, Complainant asserts that he was told there was no work for him and the Agency placed him in a room with nothing to do up to the date he was forced to retire.
ANALYSIS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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).
In the instant case, the settlement agreement was made in 2004, nearly seven years prior to Complainant's breach allegation. Moreover, Complainant does not dispute the Agency's assertions that it provided him with the promised modified position for years. 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. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Papac v. Dep't of Veterans Affairs, EEOC Request No. 05910808 (Dec. 12, 1991); see also Parker v. Dep't of Def., EEOC Request No. 05910576 (Aug. 30, 1991). See also, Gish v. Dep't of the Army, EEOC Appeal No. 01950923 (Aug. 14, 1995) (no breach found 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.)
Moreover, Complainant has offered only speculation about what would have happened to his position under the National Reassessment Process. He has not disputed the Agency's assertion that he retired prior to completing the process. Under these facts, we do not find that Complainant has established that the Agency breached the agreement.1
The decision finding no breach is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
May 4, 2012
__________________
Date
1 We note that Complainant states he has filed a separate constructive discharge complaint that is pending for hearing before the EEOC's Miami District Office. EEOC Hearing No. 510-2012-00073X.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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