0120081146
12-05-2008
Ed A. Delos Reyes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ed A. Delos Reyes,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081146
Agency No. 4F926019707
DECISION
JURISDICTION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated November 27, 2007, finding that it was
in compliance with the terms of the July 10, 2007 settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(1) Management agrees to research the overtime hours of [named
individuals] for Quarter 1, 2007, to determine all overtime hours and
their assigned duties during that time frame and;
(2) Supervisor [named individual] and Postmaster [named individual]
agree to meet with [complainant] and [named individual] to negotiate the
amount of hours due to [complainant] for Quarter 1 overtime equitability.
By letter to the agency dated October 15, 2007, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency failed to determine the amount of overtime hours
due complainant.
In its November 27, 2007 FAD, the agency concluded that it has complied
with the specific terms of the agreement. Specifically, the agency
indicates that it accordance with provision (1) of the agreement, the
agency researched the overtime hours of other named employees for Quarter
1. In addition, the agency indicates that it met with complainant's
representative and provided him with the information researched
pursuant to provision (1) of the agreement. Regarding provision (2)
the agency indicates that is has tried to meet with complainant and his
representative to negotiate the number of overtime hours due complainant
in accordance with the agreement. However, according to the agency,
complainant and his representative have been unavailable to meet due
to scheduling conflicts. The agency concludes therefore, that it has
complied with the terms of the agreement and complainant himself, has
prevented the agreement from being carried out.
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, complainant does not dispute that the overtime
hours of named individuals were researched by the agency in accordance
with the agreement. Complainant's argument in support of his breach
claim is that the agency has failed to determine the number of
overtime hours complainant is due. However, complainant has failed
on appeal to address the agency's contention that complainant and his
representative have been unavailable to meet to negotiate the number of
overtime hours due complainant in this matter. Complainant has failed
to present persuasive evidence that the agency has breached the agreement
as alleged. Specifically, in applying the plain meaning rule as discussed
above, complainant has not established that the agency has breached the
specific provisions of the July 10, 2007 agreement between the parties.
We note that in its final determination, the agency indicates that it
is has made every effort to negotiate overtime hours with complainant
in accordance with the agreement, and that it will continue to do so
when complainant and his representative are available.
The Commission finds therefore, that the agency's determination that
it did not breach the settlement agreement was proper. The agency's
decision is affirmed for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
December 5, 2008
__________________
Date
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0120081146
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120081146