0120073566_rdoc
01-30-2009
Nathan H. Love, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Nathan H. Love,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073566
Agency No. 4E680003107
DECISION
Complainant filed an appeal with this Commission from a final decision
(FAD) by the agency dated October 19, 2007, finding that it was in
compliance with the terms of the settlement agreement, dated April 3
and 4, 2007 (SA).1 See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504;
29 C.F.R. � 1614.405.
On February 13, 2007, complainant, a tire repairer in the Motor Vehicle
Facility (MVF), sought EEO counseling, claiming that the agency harassed
and discriminated against him based on race (African American) in regard
to his hours and work duties; the parties subsequently entered into the
SA at issue. The SA provided for a re-posting of complainant's position
(a) with a new start time of 6:00 am (instead of 7:00 am) and off-days of
Saturday/Sunday; and (b) to include the phrase "other duties as assigned."
On June 25, 2007, complainant alleged a breach of the SA, in that, in
July 2007, with the agreement of the union, the agency planned to close
Tour 1 in the MVF and to re-post all jobs with the earliest start time
to be 6:45 am.
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 the intent of the parties is expressed in the written
words of the contract, not some unexpressed intention, that controls the
contract's interpretation. 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 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 is plain and unambiguous on its face,
its meaning must be determined from the four corners of the document
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, after complying with the agreement, the agency
made a decision that it was in the best interests of the agency to close
Tour 1 in the MVF. This change in circumstances affected all employees
and not only complainant. The SA gave complainant the start time he
sought in the operating conditions extant in the MVF as of April 2007,
and a change in those conditions months later is not a breach of the SA,
absent a showing that the agency was aware that this would occur at the
time the SA was signed.
CONCLUSION
For the above reasons, we find that the agency did not breach the SA at
issue herein.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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, D.C. 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
__01/30/2009________________
Date
1 Complaint filed a request with the Commission on August 7, 2007,
seeking enforcement of the SA at issue herein. We determined that,
in accordance with our regulations, complainant's filing was an early
appeal from the agency's FAD dated October 19, 2007. Complainant is
reminded that allegations of breach must be made initially to the agency
and not the Commission. 29 C.F.R. � 1614.504(a).
2 Complainant raises new issues that must be brought to the attention
of an EEO counselor, as provided in the Commission's regulations.
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0120073566
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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0120073566