0120092225
07-24-2009
Dennis L. Bailey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dennis L. Bailey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092225
Agency No. 1 C-443-0081-99
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated March 19, 2009, finding that it
was in compliance with the terms of the September 30, 1999 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:
(1) [AL] will get information about the requirements of the custodial
craft position and verify with the personnel department the viability
of an offer
(2) [Complainant] will need his doctor to review the job description
and approve appropriate responsibilities and duties.
(3) [Complainant] will make a new request for permanent light
duty/reasonable accommodation status.
(4) The duties that are Ok'd by [complainant's] doctor will
befashioned into an offer of a job accommodation.
On February 18, 2009, 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
moved his position from the 5 Points Station to the Main Plant.1
In its March 19, 2009 FAD, the agency concluded that it was not in breach
of the agreement. The agency stated that the 5 Points station no longer
required 3 full time custodians so complainant was moved.
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 settlement agreement was 10 years old. The
agency states that the needs of the agency had changed. As such, the
Commission finds that the agency is not in breach of the 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
July 24, 2009
__________________
Date
1 On appeal, complainant submitted information indicating that he also
pursuing an EEO complaint (1C-443-0024-09) on the matter as well as
other claims. It appears an appeal on the matter is pending with the
Commission (Appeal No. 0120092763). In addition, complainant filed a
grievance regarding his seniority which was settled.
??
??
??
??
2
0120092225
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120092225