William T. Spicer, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 19, 2009
0120090186 (E.E.O.C. Mar. 19, 2009)

0120090186

03-19-2009

William T. Spicer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


William T. Spicer,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120090186

Agency No. 1H-304-0043-08

DECISION

JURISDICTION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated September 12, 2008, finding that

it was in compliance with the terms of the June 27, 2008, 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) Mr. [X] will give the counselee a detailed position as a Level

19 within the next six weeks (no later than August 8, 2008) for a 60-day

detail.

(2) The Counselee agrees to withdraw the breach allegation on case #

1H-304-0034-08 on June 27, 2008.

By letter to the agency dated August 29, 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 failed to put him in the agreed upon position

and failed to give him any information regarding the matter.

In its September 12, 2008 FAD, the agency concluded that it had not

breached the agreement. The agency indicated that while it was unable

to comply with the agreement by the August 8, 2008, date complainant

was placed in a detail assignment as an Information Systems Specialist

EAS-19 effective September 27, 2008.

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).

Upon review, we agree that the agency substantially complied with the

settlement agreement. The evidence shows that complainant was placed

in the agreed upon position eight weeks after the identified date in

the settlement agreement. The Commission has held that the failure to

satisfy a time frame specified in a settlement agreement does not prevent

a finding of substantial compliance of its terms, especially when all

required actions were subsequently completed. Lazarte v. Department of the

Interior, EEOC Appeal No. 01954274 (April 25, 1996); Sortino v. United

States Postal Service, EEOC Request No. 05950721 (November 21, 1996),

citing Baron v. Department of the Treasury, EEOC Request No. 05930277

(September 30, 1993) (two weeks delay in transfer of official letter of

request rather than letter of apology found to be substantial compliance);

Centore v. Department of Veterans Affairs, Appeal No. 01A04637 (November

2, 2000) (a few days after sixty day time period for compliance not a

material breach of settlement agreement). As such, the Commission finds

that the agency substantially complied with the settlement agreement

even though it did not meet the agreed upon time frame.

CONCLUSION

Accordingly, the agency's finding of no breach of the instant settlement

agreement 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

03/19/09

__________________

Date

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0120090186

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 77960

Washington, D.C. 20013

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0120090186