01A41866_r
12-21-2004
Brian D. Mickavicz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Brian D. Mickavicz v. United States Postal Service
01A41866
December 21, 2004
.
Brian D. Mickavicz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41866 Agency No. 4E-970-0120-02
DECISION
The record reveals that on August 25, 2000, complainant and the agency
entered into a settlement agreement regarding complainant's EEO complaint.
The settlement provided in pertinent part as follows:
1. In settlement of the matter, I will receive level 5 pay until I bid
another job.
2. If tour 2 forklift position becomes available with the same days off
as my previous bid, I will be considered incumbent if I bid that position.
By letter dated October 6, 2003, complainant informed the agency that
it had breached the settlement agreement. Complainant stated that he is
being utilized as a General Mail Handler and is not spending the majority
of his time performing Operation 230-02. Complainant argues that he is
being utilized to fill the gaps on tour 2 and that this is contrary to
the settlement agreement. Complainant maintains that his job has been
changed without his consent. According to complainant, he and the Senior
Plant Manager agreed that his bid position is forklift/mule driver for
the P&DC dock.
By decision dated December 15, 2003, the agency determined that it had
not breached the settlement agreement. The agency stated that complainant
is still receiving level 5 pay and the conditions relative to the second
term of the settlement agreement have not arisen and therefore have not
been breached. The agency noted that complainant claimed that he had
a conversation with the Senior Plant Manager after the mediation which
changed the terms of the settlement agreement. However, the agency
stated that this conversation was not committed to writing and occurred
after the settlement agreement was executed.
On appeal, complainant states that on August 29, 2003, he learned that
his job had been changed to a generic job lacking specific duties and
descriptions, thus allowing the agency to utilize him as a utility
mail handler. Complainant maintains that this action violated the
settlement agreement. According to complainant, he was placed under
the settlement agreement in a mail handler technician position where his
duties would be forklift, mule, and dock. Complainant argues that his
placement in that position should be binding and part of the settlement
agreement even though it is not specifically referenced in the written
settlement agreement.
The Commission has consistently 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, 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 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, 381 (5th Cir. 1984).
Complainant contends that the agency has breached the settlement agreement
by taking him off his bid position and assigning him generic job duties
in a utility role. Upon review of the settlement agreement, we observe
that the agreement provided that complainant would receive level five pay
until he bid another position and that if a tour two forklift position
became available with the same days off as complainant's previous bid,
complainant would be considered the incumbent if he bid for the position.
Complainant's claim of breach does not address any of the consideration
that he is supposed to receive under the settlement agreement.
An agreement concerning complainant's bid position entered into between
complainant and the Senior Plant Manager is not enforceable unless it
was reduced to writing. We find that complainant has not established
that the agency breached the settlement agreement.
Therefore, the agency's decision finding no breach of the August 25,
2000 settlement agreement is 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 21, 2004
__________________
Date