Wayne T. Norton, Sr., Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.

Equal Employment Opportunity CommissionNov 13, 2009
0120093025 (E.E.O.C. Nov. 13, 2009)

0120093025

11-13-2009

Wayne T. Norton, Sr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.


Wayne T. Norton, Sr.,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southwest Area),

Agency.

Appeal No. 01200930251

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated June 23, 2009, finding that it was

in compliance with the terms of the April 7, 1999 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 agency

shall provide:

(1) A new job offer consisting of the following duties will be made to

[complainant] as a Permanent rehab assignment.

Hours of duty 0600-1450 Off days Sunday and Monday

(2) Duties

(a) Banding 200-300 trays per day in the strapping & banding unit

when work is available.

(b) Work on loose mail belt facing and traying loose letters, flats

and [supervisor's] requires periodic lifting to 35lbs and 8 hrs standing.

(c) Work in empty equipment area sorting and palletizing empty

equipment. Requires standing and periodic lifting [t]o 35 lbs.

On May 22, 2009, complainant contacted the agency and alleged that it

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

specifically implement its terms. Specifically, complainant alleged

he was issued a Limited Duty Assignment changing his assignment hours,

days off, and duties in violation of the settlement agreement.

In its June 23, 2009 FAD, the agency concluded that complainant had not

contacted the agency in a timely manner regarding his claim of breach

of settlement agreement. The agency noted that it had been 10 years

since the settlement agreement was signed. In addition, the agency

indicated that complainant called the agency's EEO office on May 22,

2009, some 44 days after receiving the new assignment on April 8, 2009.

This appeal files.

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).

In the instant case, complainant alleged that the settlement agreement

was breached when he was issued a new assignment changing his hours,

days off, and duties. The Commission has held that a settlement

agreement that places a complainant into a specific position, without

defining the length of service, will not be interpreted to require the

agency to employ the complainant in the position in perpetuity. See

Parker v. Department of Defense, EEOC Request No. 05910576 (August 29,

2001); Hamilton v. United States Postal Service, EEOC Appeal No. 01A22268

(July 5, 2002) (settlement agreement granting complainant a certain work

schedule was not breached when after assigning complainant the promised

work schedule for five months, complainant's schedule was again changed

to meet the operational needs of the agency). Upon review, we find no

evidence that the agency acted in bad faith.

CONCLUSION

Accordingly, the Commission AFFIRMS the agency's finding that it did

not breach the agreement.

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

November 13, 2009

__________________

Date

1 The agency indicated that it could not locate an EEO case number for

this matter.

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2

0120093025

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120093025