01a42281_r
09-10-2004
Steven G. Constable, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Steven G. Constable v. United States Postal Service
01A42281
September 10, 2004
.
Steven G. Constable,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42281 Agency No. 4B-120-0085-03
DECISION
The record reveals that on June 10, 2003, complainant and the agency
entered into a settlement agreement regarding complainant's EEO complaint.
The settlement provided in pertinent part as follows:
[Operations Manager] will recommend [complainant] for OIC assignments
after August, within commuting distance of Troy, and with supervisory
responsibility, preferable level 13.
In January 2004, complainant informed the agency that it had breached the
settlement agreement and he requested that his complaint be reinstated.
By decision dated February 6, 2004, the agency determined that it had
not breached the settlement agreement. The agency determined that no
breach of the settlement agreement occurred given that the Operations
Manager recommended complainant for OIC assignments three times after
August 2003. The agency noted that in September 2003, the Operations
Manager contacted complainant's Postmaster and requested that he offer
complainant an Officer-In-Charge (OIC) assignment in either West Lebanon
or Rensselaerville, New York. According to the agency, complainant
was offered these assignments, but complainant declined the offers
on the grounds that the travel was too far. The agency stated that
in December 2003, complainant was offered an OIC assignment starting
on December 24, 2003, in Sand Lake, New York. The agency stated that
complainant was unable to change leave that he had previously scheduled
and that therefore another employee was assigned to fill the vacancy.
The agency stated that the settlement agreement does not require that
it provide complainant with an OIC assignment that is in keeping with
his personal schedule or that is a specific driving distance from the
Troy facility. The agency noted that complainant continues to remain
on the list of candidates for an OIC assignment.
On appeal, complainant contends that he accepted the Sand Lake OIC
assignment, but the offer was subsequently withdrawn. Complainant further
claims that he was unaware of the West Lebanon opportunity.
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, 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 noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
The Commission has consistently held that settlement agreements are
contracts between the complainant and the agency, and 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 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, 381 (5th Cir. 1984).
Upon review of the record, we observe that complainant has not submitted
argument or evidence that refutes the agency's position that it has not
breached the settlement agreement. Complainant claimed breach because
he has not received any OIC assignments since the settlement agreement
was executed. We note, however, that the settlement agreement does not
require that complainant receive OIC assignments, but rather that the
Operations Manager recommend complainant for OIC assignments after August,
within commuting distance of Troy, and with supervisory responsibility,
preferably level 13. Complainant has not refuted the agency's position
that the Operations Manager recommended him for two OIC assignments
that were within commuting distance of Troy, New York.<1> We find that
complainant has not established that the agency breached the settlement
agreement.
Therefore, the agency's February 6, 2004 decision finding no breach
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
September 10, 2004
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Complainant would have been required to travel beyond a reasonable
commuting distance from Troy had he received the OIC assignment to
Rensselaerville.