Michael C. Milner, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 21, 2005
01a55236_r (E.E.O.C. Dec. 21, 2005)

01a55236_r

12-21-2005

Michael C. Milner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Michael C. Milner v. United States Postal Service

01A55236

December 21, 2005

.

Michael C. Milner,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A55236

Agency No. 4K-230-0076-02

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated July 8, 2005, finding that it was in

compliance with the terms of the February 2, 2004 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 February 2, 2004 settlement agreement provided, in pertinent part,

that:

1. Assignment to Another Station. USPS agrees to make, and Employee

agrees to accept, a Rehab Job Offer for a Modified Clerk's Position at

Pocoshock Station, Richmond, Virginia to be effective February 2, 2004.

As stated in the Rehab Job Offer, dated February 2, 2004, his days off

will be Wednesdays and Sundays and his regular working hours are from 9

a.m. to 5:30 p.m. Employee will not work at more than one station per

day other than his primary assignment.<1>

By letter to the agency dated June 8, 2005, complainant claimed that the

agency breached the settlement agreement, and requested that the agency

specifically implement its terms. Specifically, complainant claimed that

on May 19, 2005, he received a letter from agency management identified

as �Advanced Notice - Involuntary Assignment�. Therein, the agency stated

that a new APPS machine will reduce the number of full-time regular craft

positions needed in the Richmond facility, by eighty-one employees. The

agency indicated that Article 12 of the National Agreement provides that

when the need to excess employees arises, the excessing is accomplished

by �juniority and that the affected employees are to receive �not less

than 60 days advance notice, if possible.� The agency then informed

complainant that he was identified as one of the junior clerk craft

employees, and that he was thereby subject to involuntary reassignment.

The agency further indicated that the reassignment could be outside

of the clerk craft within the installation where he is employed, or

both within or outside of the clerk craft outside the installation, in

accordance with the provisions of Article 12 of the National Agreement.

Complainant further claimed that he received a response to his May 20,

2005 inquiry letter in which management "upheld [a] the May 11, 2005

letter and went on to say that my February 2, 2004 E.E.O.C. Settlement

Agreement was basically worthless."

In its July 8, 2005 final decision, the agency found there was no breach

of the February 2, 2004. Specifically, the agency noted that according

to the Manager, Labor Relations (Manager), management complied with

the terms of the settlement agreement. The agency further noted that

according to the Manager, due to the arrival of APPS machines, excessing

would be done according to seniority. The agency noted that the Manager

stated that complainant had not yet been reassigned but that it was very

possible that he would be involuntary reassigned.

On appeal, complainant contends that in accordance with the terms of

the settlement agreement, the agency "cannot assign me except by mutual

written agreement." Complainant further states that the agency breached

the settlement agreement by sending him the Advanced Notice-Involuntary

Reassignment letter.

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).

The agency properly found no breach of the February 2, 2004 settlement

agreement. The record contains an affidavit from the Manager. Therein,

the Manager stated that complainant's inquiry letter dated May 20, 2005

was referred to him by the Richmond Postmaster. The Manager stated

that on June 1, 2005, he sent a letter to complainant informing him

that "the advance notice of involuntary reassignment he had received

dated May 11, 2005 explains that the notice is based on the new APPS

machine." The Manager further stated that the May 11, 2005 letter

also put complainant on notice that he "has been identified as one of

the junior 81 clerk craft employees within the installation and thereby

is subject to be excessed out of the installation." The Manager stated

that after a review of the settlement agreement, he did not find anything

that exempted complainant from the National Agreement. Furthermore, the

Manager stated that "when and if the time comes to involuntary reassign

him, management have to modify a position in the gaining office to meet

his medical restrictions, but that he remained subject to excessing in

accordance with the National Agreement."

Given the present record, the Commission determines that the agency

has fulfilled its affirmative obligations pursuant to the settlement

agreement, and the Commission AFFIRMS the agency's finding of no breach.

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

December 21, 2005

__________________

Date

1The settlement agreement also provided that the agency would provide

complainant with one course of training in "Sheme;" and provide

complainant with three shirts and one apron per calendar year.

These provisions are not at issue in the instant appeal.