01973395
03-30-1999
Bruce Dean, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Bruce Dean v. United States Postal Service
01973395
March 30, 1999
Bruce Dean, )
Appellant, )
)
v. ) Appeal No. 01973395
) Agency No. 1C-1664-93
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
_________________________________)
DECISION
Appellant filed an appeal with the Commission from the agency's February
13, 1997 decision finding that the agency did not breach a settlement
agreement entered into on June 8, 1993. The consideration provided
to appellant in the settlement agreement consisted of the following:
"Management agrees that as a final and complete settlement the complainant
will be awarded bid #3411298; with no subsequent vacancy involved."
Appellant subsequently informed the agency that it had breached the
settlement agreement. The agency issued a decision finding that it had
not breached the settlement agreement. The agency found:
[The Manager, Maintenance Operation] stated that job number 3411298 was
reverted [a footnote states: "A reverted job is based on management's
decision to reduce the number of positions in an installation when such
position(s) is/are vacant . . ."] effective 10/17/92. He continued that
he was not aware of this at the signing of the settlement. The some
of the duties of job #341298 were reassigned to job #3912878 during the
postal restructure of 11/14/92. [The Manager] stated that this new job
number was filled by [Person A]. He continued however that many of the
duties of the old job including working in PSDS & OCR with off days of
Saturday and Sunday and a staring time of 0600 were given to you. [The
Manager] stated that the [Person A] was not removed from job, but that
the duties were shared by both of you.
. . . While the specific job number no longer exists, you have been
given the benefits of working the duties of the reverted position.
EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties shall be
binding on both parties. That section further provides that if the
complainant believes that the agency has failed to comply with the terms
of a settlement agreement, the complainant shall notify the Director
of Equal Employment Opportunity of the alleged noncompliance with the
settlement agreement. 29 C.F.R. �1614.504(a). The complainant may
request that the terms of the settlement agreement be specifically
implemented or request that the complaint be reinstated for further
processing from the point processing ceased. Id.
Settlement agreements are contracts between the appellant and the agency
and it is the intent of the parties as expressed in the contract, and not
some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th
Cir. 1938). In reviewing settlement agreements to determine if there is
a breach, the Commission is often required to ascertain the intent of the
parties and will generally rely on the plain meaning rule. Wong v. United
States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing
Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,
1991)). This rule states that if the writing appears to be plain and
unambiguous on its face, then its meaning must be determined from the
four corners of the instrument without any resort to extrinsic evidence
of any nature. Id. (citing Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984)).
An electronic mail message from the Manager states that appellant was
never placed in #3411298 because that job was reverted on October 17,
1992. The Manager stated that the job appellant wanted was created and
belonged to Person B in November 1992 and that "[Person A] has that no."
The Manager concluded that "[t]he EEO was never carried out as presented.
(This was not intentional)."
The Commission finds that the settlement agreement is not an enforceable
agreement because the agreement was based on a mutual mistake of
material fact. See O'Brien v. United States Postal Serv., EEOC Request
No. 05920560 (Feb. 11, 1993). Both parties apparently mistakenly believed
that bid #3411298 existed when the agreement was entered into in 1993.
The placement of appellant into bid #3411298 is the only consideration
for appellant in the agreement. Because there exists no bid #3411298
to place appellant in, the agreement can not be satisfied. Appellant's
sharing of some duties is not sufficient to be equivalent to placement
into bid #3411298. The Commission sets aside the settlement agreement
and remands the matter so that the agency may reinstate the settled
matter from the point processing ceased.
The agency's determination that it did not breach the settlement agreement
is VACATED and we REMAND the purportedly settled EEO matter to the agency
for further processing in accordance with this decision and applicable
regulations.
ORDER
Within 30 days of the date this decision becomes final the agency
shall reinstate the settled matter from the point processing ceased and
thereafter process the matter in accordance with Part 1614 Regulations.
Within 30 days of the date this decision becomes final, the agency
shall notify appellant in writing that it has reinstated the settled
matter and will process the matter in accordance with EEOC Regulations.
A copy of the letter notifying appellant of the reinstatement of his EEO
matter must be submitted to the Compliance Officer, as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
March 30, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations