Jon W. Han, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 5, 2009
0120072161 (E.E.O.C. Aug. 5, 2009)

0120072161

08-05-2009

Jon W. Han, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Jon W. Han,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120072161

Hearing Nos. 310-97-5402X, 310-98-5241X

Agency Nos. 4G-730-1043-96, 4G-730-0049-97

DECISION

Upon review, the Commission finds that the agency's decision dated

March 22, 2007, not to reinstate complainant's complaints of unlawful

employment discrimination that the parties had settled is proper. See 29

C.F.R. � 1614.504. On May 11, 1998, the parties entered into a settlement

agreement resolving the complaints. The settlement agreement provided,

in pertinent part, that:

Complainant will be rehabbed into a position. This means that a permanent

job will be formulated to fit complainant's medical restrictions within

the carrier craft. Complainant will retain his current schedule.

Complainant's rehab job will be to the Moore Branch. Complainant

understands that the rehab job will not entail duties on the street

other than those he is currently performing.

In accordance with the terms of the settlement agreement, on May 22, 1998,

complainant was offered and signed his formulated job offer as a Modified

City Letter Carrier with duty hours of 7:30 am - 4 pm, effective June 6,

1998. The duties of this assignment included: change locks on NDCBU'S;

enter station input; other computer work; deliver priority and express

mail that arrives late; case on routes as needed; and other duties as

assigned within restrictions.

Thereafter, on August 26, 2006, 8 years after the settlement agreement,

complainant alleged that the agency breached the settlement agreement

when he was assigned to carry relays/shifts off routes since June 1996,

and his starting time was changed to 8:45 am effective July 8, 2006.

The Commission has 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, and not some unexpressed intention, that

controls the contract's construction. Eggleston v. Department of Veterans

Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition,

the Commission generally follows the rule that if a 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 v. Building Engineering

Services, 730 F.2d 377 (5th Cir. 1984). Although the Commission is not

generally concerned with the adequacy or fairness of the consideration in

a settlement agreement as long as some legal detriment is incurred as part

of the bargain, when one of the parties to a settlement incurs no legal

detriment, the agreement will be set aside for lack of consideration.

See Morita v. Department of the Air Force, EEOC Request No. 05960450

(December 12, 1997).

Upon review, we find that the agency complied with the terms of the

settlement agreement at issue. Complainant's manager indicated that in

June 2006, the duties of entering station input and other computer work

were no longer available for complainant to perform due to the agency's

data privacy and security restrictions. Specifically, the manager stated

that the station input was no longer performed at the local unit level

and the ACE computer application did not allow access for complainant

to perform other computer work that he previously performed. The agency

stated that the change of complainant's work hours were appropriate for

the duties now being performed. Based on the foregoing, we find that

because of the changed circumstances, the agency did not breach the

terms of the settlement agreement.

In addition, we note that complainant is alleging that subsequent

acts of discrimination violated the settlement agreement, which should

be processed as a separate complaint of discrimination pursuant to �

1614.106. See 29 C.F.R. � 1614.504(c). If complainant wishes to pursue

such discrimination claims through the EEO process, then complainant

may raise his claim of subsequent discrimination by contacting an EEO

Counselor pursuant to 29 C.F.R. �1614.105 if he has not already done so.

The Commission does not address in this decision whether such EEO

Counselor contact would be considered timely.

Accordingly, the agency's decision finding no settlement 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

8/5/09

__________________

Date

2

0120072161

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013