0120062933
03-26-2008
Calvin D. Gordon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Calvin D. Gordon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200629331
Agency No. 4G-780-0237-05
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated February 14, 2006, finding that it was in
compliance with the terms of the November 23, 2005 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
(1) Medical bills paid up to $200.
. . . .
(5) Purge derogatory information from [complainant's]
station file and [from his] Official Personnel File . . . .
(6) The Austin Postmaster and Downtown Station manager will facilitate
the full time transfer or swap request of [complainant];
(7) Status of the request for the transfer of [complainant] will be
verified by either Union or EEO representative to Santa Cruz, St Luis
Opisipo [sic], Santa Rosa or Eureka, California.
(8) If the transfer/swap is found that the action will be processed,
then the movement/relocation can be processed in no less than 90 days,
unless [complainant] and the receiving MSC agrees to a different time
frame.
The agency found that complainant alleged breach by letter dated December
30, 2005. By decision dated February 14, 2006, the agency concluded that
it could not yet comply with the provisions of the agreement pertaining
to complainant's transfer to another station because the agency cannot
implement the transfer request for an employee without complainant
affirmatively taking some action. Rather, the agency explains, the
employee must request a transfer through "e-reassign" before actions
can be taken by management to assist in the transfer/swap process.
The agency noted that management has, nevertheless, contacted several
units in California to assist with the transfer process.
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, we find that no breach of the settlement agreement
has occurred. We find that complainant has acknowledged receipt of
consideration specified in other provisions of the settlement agreement.
Specifically, complainant's medical bills ($200) have been paid and the
derogatory information has been purged from complainant's station and
official personnel files. Accordingly, we find that complainant has
derived some benefit from the settlement agreement and complainant does
not rebut the agency's contention that because of the agency's process,
complainant himself must initiate the transfer process before the agency
can facilitate his transfer to another station.
We therefore AFFIRM the agency's final decision finding that no breach
of the settlement agreement occurred.
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
March 26, 2008
__________________
Date
1 Due to a new data system, the Commission has redesignated the instant
case with the above-referenced appeal number.
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0120062933
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120062933