01A21999_r
06-25-2002
Ascencion Garcia, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ascencion Garcia v. United States Postal Service
01A21999
June 25, 2002
.
Ascencion Garcia,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A21999
Agency No. 1G-784-0032-00
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD)by the agency dated February 4, 2002, finding that it was in
compliance with the terms of an October 12, 2000 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The October 12, 2000 settlement agreement provided:
�That [complainant's] reporting time be changed to 2:00 pm and that the
change be reflected in his expediter duty assignment effective 10-14-00.�
In correspondence to the agency dated November 2, 2001, complainant
alleged that the agency breached the agreement on November 1, 2001.
Specifically, complainant alleged that on that day, he received a letter
from an agency Manager P&D notifying him that effective November 10,
2001, his begin time would be 15:00 [3:00 pm] hours and ending time
would be 23:30 hours with the same non-scheduled days. In addition,
the November 1, 2001 letter stated that the change was due to the �needs
of the service� and that it was in accordance with the terms of the
National Agreement.
In its February 4, 2002 FAD, the agency concluded that it did not
breach the settlement agreement. Specifically, the agency found that
complainant's hours had been changed from 2:00 p.m. to 3:00 p.m. due to
the needs of the service.
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 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 instant settlement agreement contained an affirmative agency
obligation to change complainant's reporting time to 2:00 pm effective
October 14, 2000. The record further reflects that the agency provided
complainant with a 2:00 pm reporting time for approximately one year,
until November 2001. The record reflects that following an agency
determination that agency service needs necessitated a change in
complainant's starting time to 3:00 p.m., such a change was effected
in November 2001. The record contains evidence supporting an agency
determination that complainant's change in starting time was attributable
to the needs of the service. Moreover, the record contains no evidence
of bad faith by the agency in making this change. Accordingly, the
agency's final determination 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
June 25, 2002
__________________
Date