01A30559_
02-11-2004
Paul H. McRae, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Paul H. McRae v. United States Postal Service
01A30559
02-11-04
.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 19848
Washington, D.C. 20036
Paul H. McRae,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30559
Agency No. 4C-080-0015-00; 4C-080-0016-00;
4C-080-0026-00; 4C-080-0049-00; 4C-080-021-00
DECISION
BACKGROUND
By letter to the agency dated October 24, 2002, complainant claimed that
the agency was in breach of a September 18, 2001, settlement agreement by
failing to place him in the Pennsgrove postmaster position. Complainant
requested that the agency specifically enforce the terms of the agreement
and place him in the postmaster position. On that same date, complainant
filed a petition with this Commission, requesting that it determine
whether the agency breached the terms of the agreement. Although
complainant filed prematurely, the Commission accepts complainant's
petition. On November 5, 2002, the agency issued its final decision,
concluding that it was in compliance with the terms of the settlement
agreement. See 29 C.F.R. � 1614.402(a); 29 C.F.R. � 1614.504.
In its November 5, 2002, final decision, the agency concluded that
the parties' settlement agreement did not reflect an intent to place
complainant in the postmaster position. Furthermore, the agency
concluded that because the position was eventually filled by an employee
who was granted the position as a lateral assignment consistent with the
agency's policy regarding noncompetitive selection, complainant had no
right to be considered through the competitive selection process.
ANALYSIS AND FINDINGS
The settlement agreement provided in pertinent part:
�Complainant and all candidates for the Pennsgrove Postmaster position
will be interviewed and complainant will be given favorable consideration
for the vacancy;�
The agency's �Employee and Labor Relations Manual� mandated that
when a vacancy occurred, management should fill the vacancy through
noncompetitive application procedures before filling the position through
competitive procedures.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties shall be
binding on both parties. The Commission has held that the parties' intent
as expressed in the agreement controls the agreement'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, 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 the settlement agreement instructs the
agency how to act with regard to complainant in the regular operation
of the agency's selection procedure and does not mandate his automatic
placement into the postmaster position. The agency's selection procedure
indicates that applicants requesting placement through the competitive
process should only be considered after those employees requesting
selection through the noncompetitive process. Therefore, the Commission
finds that the agency did not breach the parties' agreement by filling
the postmaster vacancy through a noncompetitive lateral transfer.
CONCLUSION
Accordingly, the agency's decision was proper and 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 tends 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
__02-11-04________
Date