01A13385_r
07-03-2002
Juhn H. Ahn, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Juhn H. Ahn v. United States Postal Service
01A13385
July 3, 2002
.
Juhn H. Ahn,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13385
Agency No. 1J-608-0011-01
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated March 28, 2001, finding that it
was in compliance with the terms of the February 22, 2001 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 that:
[MSS Coordinator, Human Resources] informed [Complainant] that he has
been approved locally for an update in his KSA for the ET-9 position
and that he will get written confirmation of this from [MSS Coordinator]
on 2/23/01. He is currently awaiting National approval on the KSA update.
[MSS Coordinator] will also provide her number for any questions/concerns
in the future.
By letter to the agency dated March 13, 2001, complainant alleged
that the agency breached the settlement agreement. Specifically,
complainant alleged that he was singled out when he received a retest
admission card and that the MSS Coordinator typed a false confirmation
letter that did not relate to the specific points discussed and agreed
on February 22, 2001.
In its March 28, 2001 FAD, the agency concluded that it did not breach
the settlement agreement. Specifically, the agency stated that
complainant provided no evidence to support his breach allegation.
The agency further stated that an inquiry revealed that the agency sent
a letter dated February 22, 2001 to complainant. Therein, the agency
confirmed that (1) complainant had been approved locally to proceed
with updating his failed KSA's; (2) complainant received a confirmation
letter dated February 22, 2001; and (3) complainant passed the required
training factor and his request to update is now at the National Test
Center in Merrifield, Virginia. Furthermore, the agency noted there
was a typographical error in the February 22, 2001 letter which stated
�procedure� instead of �proceed.�<1> In addition, the agency stated that
the record reveals that on March 21, 2001, complainant was scheduled to
update his KSA's via examination Test 792 for the ET position and that
he failed to report for that appointment.
The record contains the MSS Coordinator's confirmation of update procedure
letter dated February 22, 2001.
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 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, we find that in the MSS Coordinator's letter dated
February 22, 2001, complainant received written confirmation that he
has been approved locally to proceed with updating his failed KSA's;
that he has passed the required training factor; and that his request to
update is now at the National level, which is the National Test Center
in Merrifield, Virginia. The Commission finds that complainant has not
shown that the agency breached the settlement agreement.
Accordingly, the agency's decision finding no breach of the 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
July 3, 2002
__________________
Date
1The sentence that contained the typographical
error stated that the letter serves � . . .as written confirmation that
you have been approved locally to procedure with updating your failed
KSA's.� (emphasis added).