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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0120093025
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093025