01a50981
04-11-2005
Stephen G. Hussey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Stephen G. Hussey v. United States Postal Service
01A50981
04-11-05
.
Stephen G. Hussey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A50981
Agency No. 1H-322-0020-04
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated November 24, 2004, finding that it was
in compliance with the terms of the April 30, 2004 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:
The parties have openly discussed the issues and both agree and understand
the steps that will be taken and are in full agreement that the issues
bringing us to mediation are resolved in their entirety.
By letter to the agency dated August 4, 2004, 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 notified him that the Letter of Warning (LOW)
would stay on the record, and not be removed from his personnel record
as agreed upon in accordance with the settlement agreement. As a result,
complainant requests reinstatement of his complaint.
In its November 24, 2004 FAD, the agency concluded that an inquiry was
made and management agreed to remove the LOW from the record on October
1, 20024. The agency further noted that the settlement agreement has
not been breached, and complainant's EEO complaint will not be reinstated.
In his appeal to the Commission, complainant contends that there was
a second issue covered by the settlement agreement which involved
the making up of four hours of overtime. Specifically, complainant
asserts that he wants full restitution paid to him for �being by-passed
and denied four hours overtime.� Complainant also requests that the
LOW be removed from his records immediately.<1> In response, the agency
reiterates that the LOW has been removed. Additionally, the agency noted
that there were no references made to the LOW in any other discipline
or proceedings, and complainant has not cited any harm that occurred
concerning the LOW. Concerning the other issue of overtime proffered by
complainant, the agency maintains that this is a �new issue� that was
not raised when complainant alleged breach of the settlement agreement
in his August 4, 2004 letter to the agency. The agency concludes, that
because this issue was not presented to management for a response, and
the settlement agreement language is not specific, it was left to the
parties to indicate to what they had agreed. Essentially, the agency
maintains that complainant should have raised the overtime issue when
he alleged breach regarding the LOW.
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 burden is on the party alleging breach to establish that a breach has
occurred. Based on the limited evidence in the record, the Commission
finds that complainant has not shown that the agency has breached the
settlement agreement at issue. Because the settlement language is vague,
the Commission cannot clearly determine what was in fact resolved during
the mediation proceeding. Further, complainant should have raised the
overtime issue when he alleged breach of the agreement. Recognizing that
complainant details his own account in his appeal letter, the Commission
is not swayed in finding that the agency has breached the settlement
agreement at issue in this matter. Accordingly, the agency's final
decision finding no settlement breach 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
____04-11-05______________
Date
1Complainant now seems more concerned with full compliance of the
settlement agreement, as opposed to reinstatement of his complaint.