01a44481
05-10-2005
Peter Ward, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Peter Ward v. United States Postal Service
01A44481
May 10, 2005
.
Peter Ward,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44481
Agency No. 1-C-404-009-03
DECISION
The Commission accepts the complainant's timely filed appeal to this
Commission from a final agency decision (FAD) dated April 23, 2004,
pursuant to 29 C.F.R. � 1614.504(b); 29 C.F.R. � 1614.405; and 29 C.F.R. �
1614.402. The complainant challenges the validity of the agreement and
the agency's finding that it was in compliance with the terms of the
August 21, 2003 settlement agreement into which the parties entered. The
complainant requests that the agreement be ruled invalid and that his
complaint be reinstated. For the following reasons, the Commission
VACATES the agency's decision and remands the matter to the agency.
As background, the settlement agreement provided, in pertinent part,
that, in exchange for the complainant's withdrawal of his pending
EEO complaints and related appeals, the agency agreed to approve the
complainant's transfer to any position for which the complainant was
accepted, if three conditions were met:
The plant must be at its APWU-Approved personnel complement level for
a minimum of 90 days.
Management would be allowed to back-fill the vacancy left by the
complainant's transfer.
Complainant's representative would be informed as to what the APWU
personnel complement was on or before December 31, 2003; and
Complainant's representative would be informed as the clerk craft
complement on or before September 30, 2003.
By letter to the agency dated March 9, 2004, complainant alleged that
agreement was invalid; and alternatively argued that the agency was in
breach of the settlement agreement because the agency had not provided the
transfer or information, to the complainant's representative, sufficient
to show the required complement strength necessary for performance.
In its April 23, 2004 FAD, the agency conceded that there was no agency
written policy that required that the personnel complement must be
approved for a minimum of 90 days in order for the agency to permit a
transfer from one craft to another.<1> The complainant argued that the
agency failed to show that the agency ever had a full complement level
maintained for any 90-day period. The agency also acknowledged that
some managers allow transfers and have no problem in back-fill, but
the complainant's manager nevertheless did not honor the complainant's
request to transfer.
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.
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 Commission finds that the provision regarding the 90-day complement
is too vague to be enforceable. In addition, we find that there was a
failure of consideration in this case inasmuch as the complainant did
not receive any consideration for the withdrawal of the EEO claims.
Accordingly, we find the agreement to be invalid.<2>
Therefore, the agency's decision is VACATED. The complainant's complaint
is reinstated and the matter is REMANDED to the agency in accordance
with this Order and applicable regulations.
ORDER (E0900)
The agency is ordered to reinstate and to process the remanded claims in
accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
A copy of the final decision must be sent to the complainant, the
complainant's representative, and the Compliance Officer as referenced
below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
May 10, 2005
__________________
Date
1 The record shows that the agency used the agreement to block a transfer
that would have otherwise gone to the complainant.
2 We note that the record indicates that the complainant may have received
his requested transfer from the plant into a letter carrier position,
effective September 18, 2004.