Paul J. Fernandez, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 5, 2001
01A20658_r (E.E.O.C. Dec. 5, 2001)

01A20658_r

12-05-2001

Paul J. Fernandez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Paul J. Fernandez v. United States Postal Service

01A20658

December 5, 2001

.

Paul J. Fernandez,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A20658

Agency Nos. 1-H-336-0098-98; 1-H-336-0144-01

DECISION

Complainant timely appealed the agency's October 9, 2001 decision,

which concluded that the agency had not breached the settlement

agreement between the parties. On March 16, 1999, the parties resolved

complainant's complaints by entering into a settlement agreement, which

provided, in pertinent part, that complainant would receive the following:

As of 3/16/99, [complainant] will be reassigned to tour 2, hours 0400

to 12:30; SDO Sat./Sun. For a guaranteed period of 2 yrs.

[A] third year in that schedule shall be guaranteed if the reduction

rate of the section, pay location 224, exceeds 60%.

Mrs. [X] will make every effort to contact her union in reference to

this settlement.

EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant

believes that the agency failed to comply with the terms of a settlement

agreement, the complainant should notify the Director of Equal Employment

Opportunity, in writing, of the alleged noncompliance with the settlement

agreement, within thirty (30) days of when the complainant knew or should

have known of the alleged noncompliance. The complainant may request that

the terms of the settlement agreement be specifically implemented or,

alternatively, that the complaint be reinstated for further processing

from the point processing ceased. The agency shall resolve the matter and

respond to the complainant, in writing. If the agency has not responded

to the complainant, in writing, or if the complainant is not satisfied

with the agency's attempt to resolve the matter, the complainant may

appeal to the Commission for a determination as to whether the agency

has complied with the terms of the settlement agreement or final decision.

The Commission has held that settlement agreements are contracts between

the complainant and the agency and it is the intent of the parties

as expressed in the contract, and not some unexpressed intention, that

controls the contract's construction. Eggleston v. Department of Veterans

Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the

Commission generally follows the rule that if a 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 v. Building Engineering Services,

730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule

when interpreting settlement agreements. The Commission's policy in

this regard is based on the premise that the face of the agreement best

reflects the understanding of the parties.

Complainant, by undated letter, alleged that the agency breached the

settlement agreement. Specifically, complainant alleges that the agency

breached the settlement agreement when he received notices characterizing

his position as a �detail�, in the first notice, and �unencumbered� in the

second notice. Complainant argues that these characterizations, if given

effect, could jeopardize his settlement agreement. Complainant argues

that the MDO attempted to end his tour 2 duties after the first year,

in breach of provision 1 of the settlement agreement, but �management

saw through [X's] erroneous interpretation and [he] remained on tour 2.�

The agency argues that complainant worked in the assignment for 2 years,

as required by provision 1 of the settlement agreement. The agency

further argues that provision 2 of the settlement agreement was not

breached because: (1) complainant did not allege breach of the provision;

and (2) there is no indication that the reduction rate of Pay Location 224

exceeded 60%, which is a contingent factor for the agency's performance

under provision 2 of the settlement agreement.

Complainant does not argue that a specific provision of the settlement

agreement was actually breached, but that it could have been breached

by characterizing his duties in such a manner. We find that complainant

has not shown breach of the settlement agreement.

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

December 5, 2001

__________________

Date