0120074025
03-13-2008
Mikel P. Moore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mikel P. Moore,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120074025
Agency No. 4E800040203
DECISION
JURISDICTION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated September 12, 2007, finding that
it was in compliance with the terms of the March 15, 2005 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) The Agency will allow complainant to participate in a training
program designed by the Aurora Postmaster, . . . , which will consist
of training for a two week period at the Altura Station and another
two week period at the Aurora Main Post Office. Complainant agrees to
take the test(s) required for the Associate Supervisor Program (ASP)
and to apply for ASP. Complainant understands that he must apply for
ASP, pass the test(s) that are required for admission into ASP, and be
accepted into the program before he will be eligible to participate in
the Associate Supervisor Program. If complainant is not accepted into
the Associate Supervisor Program after taking the test(s) and making
proper application, complainant will be allowed to continue training
with the Aurora Postmaster until he is accepted into the ASP or the
Aurora Postmaster determines the training is complete. If the training
is complete without complainant being accepted into ASP, he will return
to his modified carrier position.
On June 27, 2007, complainant notified the agency, alleging that the
agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
said that he had been notified the previous day that he had not been
selected for the ASP. In an electronic message dated August 6, 2007,
complainant further stated that external candidates for ASP were judged
under different criteria than internal candidates such as himself,
who were not given any credit for their educational experience.
In its September 12, 2007 FAD, the agency concluded that it was in
compliance with the agreement. Specifically, the agency noted that the
agreement did not stipulate that complainant would be able to participate
in the APS if he failed to gain admission, and that the agreement only
promised to train complainant for admission to the ASP.
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, we find no breach of the agreement. A review of
the agreement shows that it agreed only to provide complainant with
training, it did not agree to guarantee complainant acceptance into ASP.
Indeed the clear language of the agreement, which states "If complainant
is not accepted into the Associate Supervisor Program after taking the
test(s) and making proper application, complainant will be allowed to
continue training with the Aurora Postmaster until he is accepted into
the ASP" indicates that complainant's failure to be accepted into ASP was
a possibility that was recognized and accepted by both parties at the
time of signing the agreement. Furthermore, complainant's allegations
concerning the different requirements for internal and external applicants
have no relevance to the issue on appeal, which is whether or not the
agency breached the agreement. We note that the agreement makes no
mention of treating internal and external candidates the same. Because
complainant has not shown any breach of the agreement, we AFFIRM the FAD.
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
March 13, 2008
__________________
Date
2
0120074025
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120074025