01A05254_r
07-11-2002
David F. O' Connell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
David F. O' Connell v. United States Postal Service
01A05254
July 11, 2002
.
David F. O' Connell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A05254
Agency Nos. 1B-021-0082-97 and 4B-020-0141-97
DECISION
The Commission finds that the agency's final decision finding that
complainant's breach claim was not timely raised was proper pursuant to
29 C.F.R. � 1614.504 (a).
The record shows that on September 24, 1998, complainant and the agency
reached a settlement agreement. The settlement agreement contained
the following provision:
The complainant will be given a fitness for duty examination by the
[agency]. If [complainant] can provide medical evidence that he is
capable of meeting the physical requirements of the P.E.R. [Promotion
Eligibility Register] positions, his name will be placed on the register
in proper order. . .
On April 26, 2000, complainant contacted the EEO office alleging that
the agency breached the September 24, 1998 settlement agreement when on
April 5, 2000, a grievance regarding not being placed on the P.E.R. for
the positions of Painter, Letter Box Mechanic, Building Maintenance
Custodian, and Maintenance Mechanic was denied.
In its final decision dated May 30, 2000, the agency determined that
complainant did not notify the agency within 30 days of the alleged
breach, as required by 29 C.F.R. � 1614.504 (a). Specifically,
the agency found that complainant knew or should have known that it
purportedly breached the agreement when on February 18, 2000, four
grievance decisions were rendered denying his request that his name be
placed on the P.E.R. list. The agency therefore found that complainant's
allegation of breach was not raised in a timely manner. The agency also
determined that assuming arguendo that the breach claim was timely raised,
the settlement agreement had not been breached.
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 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).
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.
If complainant believes that the agency has failed to comply with
the terms of a settlement agreement, complainant shall notify the
EEO Director, in writing, of the alleged noncompliance within thirty
days of the date when complainant knew or should have known of the
alleged noncompliance. Complainant may request that the terms of the
settlement agreement be specifically implemented or, alternatively,
that the complaint be reinstated for further processing from the point
processing ceased.
The Commission determines that complainant did not timely allege
settlement breach regarding his name not being placed on the P.E.R. list.
Complainant asserts that he only became aware of the settlement breach
when he received a letter from the Union President regarding the status
of his grievances on April 5, 2000; however, the record reflects that
complainant initially raised this claim in four grievances that were
denied on February 18, 2000. Given this circumstance, the Commission
finds that complainant knew or should have known that the settlement
agreement had been purportedly breached when complainant filed his
grievances prior to February 18, 2000. Complainant did not, however,
raise a breach claim until April 26, 2000. Accordingly, the Commission
finds that the agency's determination that complainant did not raise
his allegation of breach in a timely manner is proper and is AFFIRMED.
Because of our disposition of this case, we will not address the merits
of the breach claim.
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
July 11, 2002
__________________
Date