01A31500
04-24-2003
Wade A. Gehrt, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Wade A. Gehrt v. United States Postal Service
01A31500
April 24, 2003
.
Wade A. Gehrt,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31500
Agency No. 1-I-531-1014-95
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, issued on November 13, 2002, finding that it was in compliance
with the terms of the February 26, 1998 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 settlement agreement provided, in pertinent part, that the agency
would:
(a) Restore eight (8) hours of annual leave used for September 16, 1994.
(b) Restore eight (8) hours of sick leave used for December 7, 1994.
(c) Restore five (5) hours of annual leave used for January 6, 1995.
(d) Agree that [complainant] will not be supervised by [Person A]
unless he voluntarily bids or requests reassignment into the area she
is assigned.
Complainant alleged that the agency was in breach of the settlement
agreement, and requested that the agency specifically implement its terms.
Complainant alleged that the agency failed to restore the sick and annual
leave as set forth in the settlement agreement.
In its November 13, 2002 decision, the agency concluded that the
agreement was not breached. The agency reasoned that, based on
information from the Labor Relations Specialist, complainant's payroll
records were properly adjusted. Specifically, 1.28 hours of annual leave
was used for September 16, 1994; 8 hours of sick leave was changed to
administrative leave for December 7, 1994; and only .31 hours of annual
leave was used for January 6, 1995. According to the Labor Relations
Specialist, leave that has not been used cannot be restored. Further,
the Specialist stated that she meet with complainant on several occasions
but that he did not provide any information to dispute her information.
Therefore, the agency found that it was in compliance with the agreement.
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).
In the instant case, the terms of the settlement agreement require
the agency to "restore" the leave "used" on three particular days.
The record indicates that complainant used fewer hours than what is
delineated in the agreement. Specifically, only 1.28 hours of annual
leave was used on September 16, 1994; and only .31 hours of annual leave
was used on January 6, 1995. As noted above, the agency contends that
the 8 hours of sick leave used on December 7, 1994, was changed to
administrative leave. It appears that the leave used by complainant
was restored. Complainant does not contend that more leave was used
than that described by the Labor Relations Specialist. Therefore,
we find that settlement agreement was not breached.
Accordingly, the agency's decision 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
April 24, 2003
__________________
Date