01a46117
01-21-2005
Manuel Mota, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Manuel Mota v. United States Postal Service
01A46117
January 21, 2005
.
Manuel Mota,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A46117
Agency No. 4G-780-0061-04
DECISION
Complainant appeals to the Commission from the agency's August 17,
2004 decision which concluded that there was no breach of settlement
agreement. On January 28, 2004, the parties resolved complainant's
concerns by entering into a settlement agreement which provided, in
pertinent part, that:
We mutually agree to conduct an interim route adjustment with
[complainant's] route 04032 on the week of March 3/6/04 through 3/12/04.
The count will involve counting and completing of PS Form 1838C, or
Office Function. It is understood that [complainant's] Street Time is
6:30 on an average day, with 30 minutes additional on days with coverage.
By complaint dated June 9, 2004, complainant alleged discrimination on the
bases of race, age, and retaliation when the agency breached its January
28, 2004 settlement agreement by not properly adjusting his route. The
agency found that after a route count, the agency increased complainant's
route time by 1 hour 35 minutes to a total time of 8 hours 5 minutes.
The agency concluded that it had not breached the settlement agreement.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that �the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of
the alleged non-compliance.� 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).
Complainant has not disputed the agency's claim that complainant's route
was adjusted, after a route count, to 8 hours 5 minutes. The settlement
agreement did not provide that complainant's route would be adjusted to
any particular time. Therefore, we find that complainant has failed to
show that the agency breached the agreement.
On appeal, in addition to his breach of settlement agreement arguments,
complainant argues that the agency has failed to address his complaint
of discrimination. Complainant alleged breach of the settlement
agreement in his EEO complaint dated June 9, 2004. Complainant also
alleged in his complaint discrimination on the bases of age, race,
and retaliation, when his route was not adjusted per his settlement
agreement. The Commission finds that the agency properly adjudicated
the matter as a breach claim. Complainant's complaint fails to state an
independent claim of discrimination and is properly dismissed pursuant
to 29 C.F.R. � 1614.107(a)(1). The complaint of discrimination is not
separate in this matter from the breach claim. Alleging a discriminatory
breach of a settlement agreement does not state an independent claim of
discrimination. Furthermore, there would have been no route adjustment
but for the settlement agreement. Thus, the claim of discrimination
can not be separated in the instant matter from the breach claim.
The agency is deemed to have dismissed the complaint and we find such
a dismissal to be proper.
The agency's decision finding no breach of settlement agreement and
dismissing the complaint 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
January 21, 2005
__________________
Date