0120070843
03-31-2009
Joel Torrez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joel Torrez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070843
Agency No. 1F904005306
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) dated November 1, 2006, finding that it was in compliance
with the terms of the July 7, 2006 settlement agreement into which the
parties entered. See 29 C.F.R. �� 1614.402; 1614.504(b), and 1614.405.
The settlement agreement provided, in pertinent part:
(1) [Complainant may] reapply for reinstatement1 to the postal service
for the position of Tractor Trailer Operator, at the Bulk Mail Center.
[The Personnel Manager] shall give [complainant] favorable consideration.
(2) [Complainant] has agreed to reapply and declare all arrests and
the resolution of those arrests. [Complainant] will follow all of the
application (sic) and answer all questions fully and truthfully.
On August 31, 2006, complainant contacted an EEO Counselor and alleged
that the agency had breached the settlement agreement. Complainant
maintained that, although he applied for reinstatement and informed
the agency of his prior convictions, as he was required to do, the
agency still denied him reinstatement into the position. Accordingly,
complainant maintained, the agency failed to implement the terms of the
settlement agreement when it denied him reinstatement into his position.
In its November 1, 2006 FAD, the agency concluded that complainant was
not forthcoming with his prior convictions during his reinstatement
request and, therefore, his request for reinstatement was denied.
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).
In the instant case, the agency agreed to give complainant "favorable
consideration" in his application for reinstatement. The agreement
in no way required the agency to approve the reinstatement request.
Further, the record reflects that the application for reinstatement
submitted by complainant did not contain a complete accounting of all of
his arrests and the resolution thereof. More specifically, complainant
failed to disclose a 2004 conviction for drug possession. We therefore
find the agency complied with the terms of the settlement agreement,
while complainant apparently did not.
CONCLUSION
Accordingly, the final agency decision finding no breach is AFFIRMED.
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
March 31, 2009
Date
1 The record reflects that in May 2006, complainant was terminated from
agency employment as a Tractor Trailer Operator. The matter was resolved
during pre-complaint mediation. Accordingly, few details of the matter
appear in the record.
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0120070843
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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