Richard D. Hormel, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 1, 2009
0120090689 (E.E.O.C. May. 1, 2009)

0120090689

05-01-2009

Richard D. Hormel, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Richard D. Hormel,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120090689

Agency No. 5R002788

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated November 4, 2008, finding that it

was in compliance with the terms of the October 20, 1989 settlement

agreement into which the parties entered. 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) [complainant] will remain Level 5 Distribution Clerk, with hours

of 8:00 a.m. to 5:00 p.m. with rotating days off the same as Pasco,

WA Supervisor of Delivery and Collections, position #SPO-51-88

(2) when [complainant's] clerk position #S0-01 becomes vacant, it

will revert back to the hours and days off agreed upon August 17, 1988,

or will be revised for the needs of the service.

By letter to the agency dated September 24, 2008, complainant alleged that

the agency was in breach of the settlement agreement, and requested that

the agency specifically implement its terms. Specifically, complainant

alleged that the agency abolished his position and required him to bid

on a new position. Complainant attempted to bid on a new position that

contained his previous duties (carrier cage job), but the bid was awarded

to a more senior employee. Complainant asserts that he is currently an

unassigned regular and may be assigned to unfavorable hours and days off,

"i.e. 'graveyard' hours and split days off."

In its November 4, 2008 FAD, the agency concluded that it was not

in breach of the agreement. The agency explained that the agreement

was reached when complainant was not selected for a position, and the

original position has not existed since 1993. Due to the reduction in

work load and the needs of the service, staffing needs changed. As a

result positions that were not senior were abolished and reposted in

accordance with the national agreement.

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 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 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).

The Commission has held that where an individual bargains for a position

without any specific terms as to the length of service, it would be

improper to interpret the reasonable intentions of the parties to include

employment in that exact position ad infinitum. See Holley v. Department

of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);

Papac v. Department of Veterans Affairs, EEOC Request No. 05910808

(December 12, 1991); see also Parker v. Department of Defense, EEOC

Request No. 05910576 (August 30, 1991). In addition, the Commission

has held that there is no breach of a settlement agreement "where an

individual has been assigned to a position pursuant to a settlement

agreement, has held the position for a period of time, and then is

excised out of the position because of agency downsizing that was not

anticipated at the time of the agreement." Gish v. Department of the Army,

EEOC Appeal No. 01950923 (August 14, 1995).

In the instant case, the agreement does not explicitly state how long

complainant was to remain in the position in question. Almost 19 years

after the agreement was signed, the needs of the agency changed. As a

result, complainant's position was impacted. As such, given the passage

of time, the Commission finds there was no breach.

Accordingly, the agency's final decision is affirmed.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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, DC 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

May 1, 2009

__________________

Date

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0120090689

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120090689