01a50336
06-23-2005
Ka Shing Chan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ka Shing Chan v. United States Postal Service
01A50336
June 23, 2005
.
Ka Shing Chan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A50336
Agency No. 4F-913-0051-04
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated September 10, 2004, finding that it was
in compliance with the terms of the March 10, 2004 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
The Notice of Termination dated January 9, 2004 will be removed from
all Postal Records. [Complainant] will resign from the Postal Service
(PS Form 2574) on Wednesday, March 10, 2004.
(2) The claimant will agree to drop any and all pending EEO's, grievances
or other adverse action against the Postal Service effective immediately.
(3) The claimant is free to reapply for employment with the U.S. Postal
Service.
By letter to the agency dated May 27, 2004, complainant alleged that
the agency was in breach of the settlement agreement when he was led
to believe that, after submitting his resignation letter voluntarily,
he could seek reinstatement with other Post Offices. Complainant stated
that he applied for reinstatement to the Los Angeles Post Office and his
application was rejected because of a poor evaluation and a recommendation
of not to rehire, which was part of his Official Personnel Folder.
In its September 10, 2004 decision, the agency concluded that the March
10, 2004 settlement agreement had not been breached.
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 agency stated that the Notice of Termination dated January 9, 2004,
was removed from complainant's Personnel Records and that there was no
Notice of Termination in complainant's Postal Records. A Notification
of Personnel Action processed on March 16, 2004, shows that complainant
resigned from the agency. The Commission finds that complainant has not
claimed that the agency did not remove the notice of termination dated
January 9, 2004. Additionally, complainant has failed to show that the
agency engaged in bad faith or that he was misled during the negotiations
of complainant's settlement agreement. In his May 27, 2004 letter,
complainant admitted that during settlement negotiations he forgot to ask
that his Official Personnel Folder, which he stated contained an unfair
evaluation of his performance and a recommendation of not to re-hire,
be expunged as well. Therefore, we find that the agency complied with
the provisions of the settlement agreement. We note that the settlement
agreement did not guarantee complainant future employment with the agency.
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
June 23, 2005
__________________
Date