Reginald H. Lewis, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 26, 2000
01A01979 (E.E.O.C. Sep. 26, 2000)

01A01979

09-26-2000

Reginald H. Lewis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Reginald H. Lewis v. United States Postal Service

01A01979

September 26, 2000

.

Reginald H. Lewis,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A01979

Agency No. 1-J-601-0057-99

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated November 20, 1999, finding that

it was in compliance with the terms of the July 27, 1999 settlement

agreement into which the parties entered.<1> 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) Routes will be assigned by seniority (to the best of the supervisor's

ability). Three verbal warnings within a one (1) year period will result

in the supervisor pulling an employee from a route.

By letter to the agency dated August 13, 1999, complainant alleged that

the agency breached the settlement agreement, and requested that the

agency implement its terms. Specifically, complainant alleged that the

agency failed to assign him to a route based on seniority.

In its November 20, 1999 FAD, the agency concluded that it had not

breached the agreement. Specifically, the agency indicated that

complainant was number thirteen on the seniority list out of seventeen

custodians, and that custodians were allowed to choose the route of

their preference

beginning with the most senior. The agency determined that complainant's

choice of route was based on seniority and, therefore, it was in full

compliance with the terms of the July 27, 1999 agreement between the

parties.

The record in this case contains an affidavit prepared by an agency

Maintenance Supervisor, dated October 14, 1999. Therein, the Supervisor

stated that he followed the settlement agreement �to the letter.� The

Supervisor further stated that complainant is number 13 on the seniority

list; that there are thirteen assignable routes; and that unassigned

custodians who were senior to complainant were given the opportunity to

voice their opinions about which unassigned routes that they would prefer.

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).

Upon review, we find that the July 27, 1999 settlement agreement was

not breached. The record indicates, and complainant fails to dispute,

that complainant is number thirteen of seventeen custodians competing for

assignable routes. While complainant alleges that the agency breached

the agreement by failing to assign him a route based on his seniority,

he fails to provide evidence in support of his claim. Without evidence

to substantiate his claim, we find that the complainant has failed to

establish that the agency has breached the agreement between the parties.

Accordingly, the agency's decision finding that it was not in breach

of the July 27, 1999 settlement agreement is hereby AFFIRMED for the

reasons set forth herein.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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

September 26, 2000

___________________

Date

__________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.