Ascencion Garcia, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 25, 2002
01A21999_r (E.E.O.C. Jun. 25, 2002)

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