01a53626
11-18-2005
Alvin Gurule, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Alvin Gurule v. United States Postal Service
01A53626
November 18, 2005
.
Alvin Gurule,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53626
Agency No. 4E-800-0099-05
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated May 19, 2005, finding that it was in
compliance with the terms of the March 17, 2005 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
The Letter of Warning dated 3/1/2005 will be immediately removed and
rescinded, and expunged from all files & records;
[Management], [National Association of Letter Carriers] NALC, and
complainant will review the route inspection results and make all
corrections within 3 weeks from this date.
During the interim time . . . Management will take no disciplinary action
for unauthorized overtime.
By letter to the agency dated April 10, 2005, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that provision (2 ) of the settlement agreement had
been breached. Complainant also argued that the agency had allowed the
station managers and the supervisors to retaliate against complainant
in addition to violating the settlement agreement.
In its May 19, 2005 decision, the agency concluded that the settlement
agreement had not been breached. The agency stated that management
met with complainant and reviewed the results of complainant's route
inspection on May 18, 2005.
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).
Regarding provision 2, the agency stated that management conducted the
route inspection within the three week period identified in the settlement
agreement. The agency said that management was not able to review the
results of the route inspection with complainant and the NALC until May
18, 2005, because of work schedule conflicts. The agency reported that
management met with complainant and his representative on May 18, 2005,
to discuss the results and the parties agreed to meet again in one month
to further discuss complainant's route. The agency determined that it
was in compliance with the settlement agreement.
The Commission determines that the agency has substantially complied
with provision 2 of the agreement and that complainant has not shown a
material breach of the agreement. By meeting with complainant and his
representative to discuss the results of the route inspections, we find
that the agency has, in the instant circumstances, substantially complied
with provision 2 of the agreement. The Commission has previously held
that failure to satisfy a time frame specified in a settlement agreement
does not prevent a finding of substantial compliance, especially when all
required actions were subsequently completed. See Lazarete v. Department
of Interior, EEOC Appeal No. 01954274. Furthermore, complainant has not
claimed that the agency has failed to make the relevant corrections to the
route. As there is no evidence of bad faith in the record, we find that
the agency has substantially complied with provision 2 of the agreement.
To the extent that complainant is alleging subsequent acts of
retaliation occurred, he should contact an EEO Counselor pursuant to
29 C.F.R. � 1614.105 if he wishes to pursue a separate complaint of
discrimination under 29 C.F.R. � 1614.106 (if he has not done so already).
The Commission does not address in this decision whether such a claim
would be properly dismissed for any reason pursuant 29 C.F.R. � 1614.107.
Accordingly, the agency's decision finding no breach of the settlement
agreement 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
November 18, 2005
__________________
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
______________________________
Equal Opportunity