01994742
01-19-2000
Richard R. Lemon, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Richard R. Lemon, )
Complainant, )
)
v. ) Appeal No. 01994742
) Agency No. 4G-7300041-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
__________________________________ )
DECISION
Complainant filed the instant appeal from the agency's April 23, 1999
decision finding that the agency has now complied with the settlement
agreement of an EEO matter entered into by the parties on February 17,
1999. <1>
The settlement agreement provided:
Postmaster will make a 30 minute adjustment to City 22 effective 2/18/99.
Adjustment is to street time. Area to be removed is �Park & Loop.�
Adjustment will be done on edit sheet. Review adjustment in 30 day[s]
with no less than a �three day� count.
In a note dated April 2, 1999 (date stamped as received by the agency's
EEO office on April 7, 1999), complainant informed the agency that it
had breached the settlement agreement. Appellant alleged: �Although
the labels for the territory which was agreed upon to be removed from
my route have been removed from my case, the route was not inspected by
3-18-99 as agreed upon and the territory was removed from my edit sheet
only yesterday.�
In a memorandum dated April 10, 1999, the Postmaster stated that he was
not aware of any EEO complaint or settlement agreement until late March
1999. The Postmaster stated that he was on sick leave from December
28, 1998 until March 22, 1999. The Postmaster stated that once he was
aware of the settlement agreement he attempted to �schedule a count� with
complainant as soon as possible and that the �mail count did in fact take
place, for 6 consecutive workdays, beginning Saturday April 3, 1999.�
The Postmaster further stated that his preliminary review of Route 22
shows that the route is close to 8 hours daily. The Postmaster states
that the 3 day count was completed within 47 days, which was beyond
the 30 day time frame in the agreement. In the April 23, 1999 decision,
the agency found that it had now complied with the settlement agreement.
The agency denied complainant's request to reinstate the settled matter.
The regulation set forth at 64 Fed. Reg 37,644, 37,660 (1999) (to be
codified as and hereinafter cited as 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. If the complainant believes
that the agency has failed to comply with the terms of a settlement
agreement, then the complainant shall notify the EEO Director of the
alleged noncompliance "within 30 days of when the complainant knew
or should have known of the alleged noncompliance." 29 C.F.R. �
1614.504(a). The complainant may request that the terms of the settlement
agreement be specifically implemented or request that the complaint be
reinstated for further processing from the point processing ceased. Id.
Settlement agreements are contracts between the appellant 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
(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th
Cir. 1938). In reviewing settlement agreements to determine if there is
a breach, the Commission is often required to ascertain the intent of the
parties and will generally rely on the plain meaning rule. Wong v. United
States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing
Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,
1991)). This rule states that if the writing appears to be plain and
unambiguous on its face, then its meaning must be determined from the
four corners of the instrument without any resort to extrinsic evidence
of any nature. Id. (citing Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984)).
Apart from the issue of time frames, complainant does not dispute on
appeal the agency's findings that the agency has now complied with the
settlement agreement. The Commission finds that although the agency
failed to completely fulfill the terms of the settlement agreement within
30 days as required in the settlement agreement, the agency substantially
complied with the agreement by fulfilling all of the terms of the
agreement shortly after the expiration of the time frame (apparently no
more than 30 days, at the most, beyond the 30 day deadline). There is
no indication in the record that complainant has been represented by
an attorney during the processing of this breach of settlement claim.
Therefore, there can no award of attorney's fees or costs in the instant
matter. Furthermore, complainant has received the consideration in the
agreement and it is not possible in the instant matter to reinstate the
underlying complaint without complainant also keeping the consideration
from the agreement.
The record shows that while the agency may have failed to take adequate
measures to ensure compliance with the settlement agreement, the agency
did not act in bad faith. Once the matter was brought to the agency's
attention, the agency quickly complied with the portion of the agreement
it had not fully complied with. Therefore, we find that the agency
properly denied complainant's request to reinstate the settled EEO
matter.
The agency's decision denying complainant's request to reinstate the
settled EEO matter is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
January 19, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________ Date
Equal Employment Assistant
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.