Bruce Dean, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 30, 1999
01973395 (E.E.O.C. Mar. 30, 1999)

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