01A21030_r
03-20-2002
Ming Z. Yu, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ming Z. Yu v. United States Postal Service
01A21030
March 20, 2002
.
Ming Z. Yu,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A21030
Agency No. 5E-1048-91
DECISION
Complainant timely appeals from the agency's November 9, 2001 decision,
concluding that it was not in breach of the settlement agreement. On May
9, 1991, the parties resolved complainant's complaints by entering into a
settlement agreement which provided, in pertinent part, that complainant
would receive the following:
Complainant will be accommodated as per his acceptance of a
[rehabilitation] job offer dated 5/1/91. His scheduled reporting time
is 6:00 a.m. to 2:30 p.m. with Sunday and Thursday as his non scheduled
days at the Hayward Main Post Office.
By letter to the agency dated July 19, 2001, complainant alleged that the
agency was in breach of the settlement agreement. Complainant argues
that the agency breached the settlement agreement when, on March 8,
2001, the agency terminated his rehabilitation offer dated May 1, 1991,
which he accepted. Complainant, thereafter, received a letter from the
agency notifying him that he was an �unassigned regular� and informing
him that he would be assigned to a residual vacancy in accordance with
the Bargaining Agreement. According to complainant, since March 20,
2001, he has not been working the scheduled reporting time and/or his
scheduled days off as arranged in the Modified Job Offer.
The agency, in its decision, argues that complainant's limited duty job
created by the settlement agreement was a result of an on the job injury
sustained by complainant. The agency notes that, during the time of
complainant's injury, the Hayward Post Office was using Letter Sorting
Machines (LSM). However, the LSMs were removed from the Hayward Post
Office in 1996. The agency found that �[s]ince the complainant's only
restriction is �no keying', and he has been performing [all] duties of
a distribution clerk, it was determined that he could be assigned to a
residual vacancy in the mail processing unit.�
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).
First, the Commission notes that it is not making a determination on
whether complainant's new assignment is in compliance with the Collective
Bargaining Agreement, or with complainant's restrictions. The Commission
is only determining whether the agency is in breach of the May 9, 1991
settlement agreement. The agency, in essence, argues that it is no longer
bound by the agreement because reassigning complainant is within the
Collective Bargaining Agreement and complainant's medical restrictions.
The Commission has held that a settlement agreement that places a
complainant into a specific position, without defining the length of
service or other elements of the employment relationship, will not
be interpreted to require the agency to employ the complainant in the
identical job specified forever. See Parker v. Department of Defense,
EEOC Request No. 05910576 (August 29, 1991); Papac v. Department of
Veterans Affairs, EEOC Request No. 05910808 (December 12, 1991); Elliott
v. United States Postal Service, EEOC Appeal No. 01970474 (August 27,
1997). In the present case, however, we find that the agency is still
bound by the terms of the settlement agreement. The agency has not shown
that there has been a change in circumstance such that complainant's
rehabilitation offer had to be terminated. We find the agency's action
to reassign complainant to be in breach of the settlement agreement.
The agency's decision finding no breach of the settlement agreement is
REVERSED. This matter is REMANDED to the agency for further processing
in accordance with this decision and the order below.
ORDER
The agency is ORDERED to specifically enforce the May 9, 1991 settlement
agreement. The agency, with 30 days of the date this decision becomes
final, shall place complainant into the same position of Modified
Distribution Clerk as accepted in the May 1, 1991 offer and referenced
to in the May 9, 1991 settlement agreement. A copy of the official
personnel action reassigning complainant must be placed in the record
and sent to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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 20, 2002
__________________
Date