0120112693
09-12-2012
Darnell A. Hixon, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Darnell A. Hixon,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120112693
Agency No. 4J481000411
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated April 6, 2011, finding that it was in compliance with the terms of the 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.
BACKGROUND
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On December 29, 2010, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1) Management agrees that Complainant will continue his role as an ODD and support the scanning initiative via field operations and Counselee will also contribute to the AMS function.
On January 12, 2011, Complainant notified the Agency that it was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Complainant alleged that he was forced to monitor the "CPMS website" which was not part of the settlement, and that he had been told not to assist with scanning programs. Complainant also stated he was given a zero rating which was changed to a 7. Complainant also stated some of his scanning access had been revoked.
In its April 6, 2011 FAD, the Agency concluded it was not in breach of the agreement. The Agency found that Complainant was given a zero initially because he was out of work between October and December, but when he returned he was given a rating based on his FY 2010 performance. The Agency determined that part of CMPS is a scanning program and, therefore, it was not outside of the agreement. The Agency further asserted that Complainant does work on scanning on Saturdays. but during the week his work in AMS has been very busy and he was needed to assist with getting all of the route adjustment work completed in AMS. Finally, the Agency stated that any revocation of access was in error and had been restored.
The instant appeal followed. In his appeal, Complainant states that revoking his access to scanning programs was not a mistake. Complainant states when he returned in December, he was initially unable to access some programs and did not gain access until he informed Human Resources of the problem.
ANALYSIS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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).
As an initial matter, the Commission notes that the settlement agreement does not address evaluations ratings, or appraisals. Thus, to the extent Complainant feels his ratings were not appropriate, those are not matters covered by the agreement.
In the instant case, the Agency provided a sworn statement regarding Complainant's work from the manager involved indicating that part of his CMPS assignment was a scanning function, and that Complainant was engaged in additional scanning on Saturdays. The agreement mentions "support the scanning initiative" and "contribute to the AMS function." It does not state the degree of involvement. Further, Complainant indicates his access to scanning programs was restored when he alerted management to his access problem.
Based on the record before it, the Commission finds that it has not been established that the Agency breached the terms of the settlement agreement. The Agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
September 12. 2012
__________________
Date
2
0120112693
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112693