01A43464_r
09-27-2004
Robert F. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert F. Smith v. United States Postal Service
01A43464
September 27, 2004
.
Robert F. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43464
Agency No. 4-I-680-0017-02
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, dated April 5, 2004, finding that it was in compliance with the
terms of a May 16, 2003 settlement agreement. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The May 16, 2003 settlement agreement provided, in pertinent part, that:
(a) The Agency shall pay Complainant the sum of $361.00 within 60 days
from the date this agreement is signed by all the parties. This sum
is considered compensatory damages and will be reported to the IRS as
miscellaneous income on a form 1099. The Agency does not represent what
tax consequences, if any, apply to this payment.
(b) The Agency shall determine Complainant's daily start time and
Complainant shall adhere to that start time. The Agency agrees to
work with Complainant to assist him in his duties relative to his
position. To the extent Complainant's medical condition, or other
circumstances change in the future, Complainant is entitled to seek
additional accommodations with the Agency or pursuant to applicable
laws or regulations. The Agency does not, however, admit by signing
this Settlement Agreement that Complainant is or will be a qualified
individual with a disability within the meaning of the Rehabilitation
Act of 1973, as amended.
By letter to the agency dated March 13, 2004, complainant alleged that
the agency breached the settlement agreement. Complainant claimed
that �[t]he understanding was that �Nancy' the afternoon clerk would
be the only clerk to �spread' the mail which I had not completed on any
given day . . . .� Complainant noted that when asked if he wanted this
written into the agreement, he stated that he did so. Complainant stated,
however, that an Administrative Judge �indicated that he did not feel
this was necessary.� Complainant alleged that the �Early Morning Clerk�
was �spreading� the mail for forty-two weeks, thereby violating the
agreement and causing him to lose pay. Complainant requested $3,780.00
in lost wages, or that his complaint be reinstated.
In its April 5, 2004 decision, the agency found no breach. The agency
noted that according to the Station Manager, �The agreement does not say
that Nancy would be the only person to spread mail. In fact it doesn't
mention anything about anyone spreading the mail.�
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 instant settlement agreement terms shows that the issue of mail
�spreading� was not addressed. EEOC Regulation 29 C.F.R. � 1614.603
provides that �[a]ny settlement reached shall be in writing and signed
by both parties and shall identify the claims resolved.� The Commission
has upheld the validity of a settlement agreement entered into orally in
one type of situation - during a hearing before an EEO Administrative
Judge where the hearing transcript evidenced the agreement. See Acree
v. Department of the Navy, EEOC Request No. 05900784 (October 4,
1990). Complainant acknowledges on appeal that the requirement that
a particular afternoon clerk spread the mail was �not specifically
written into the agreement.� Complainant argues, however, that a �verbal
agreement� was violated by allowing the early morning clerk to perform
parts of his job. The Commission disagrees. We find that if complainant
wanted the morning clerk to be the only other employee to spread mail,
his intentions should have been reduced to a writing and included in
the agreement. See Jenkins-Nye v. General Services Administration, EEOC
Appeal No. 01951903 (March 4, 1987). Furthermore, complainant did not
present any evidence to support his contention that the AJ dissuaded
him from doing so.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby 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
September 27, 2004
__________________
Date