0120092467
02-18-2011
Fortino J. Cortez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Fortino J. Cortez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120092467
Agency No. 1F-908-0014-081
DECISION
On May 14, 2009, Complainant filed a timely appeal with this Commission
from the Agency's Letter of Determination (Letter) dated April 14, 2009,
finding that it was in compliance with the terms of the July 10, 2008,
Settlement Agreement (SA) between the parties. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented in this appeal is whether the Agency complied with
the SA.
BACKGROUND
On April 22, 2008, Complainant contacted an EEO counselor apparently
claiming discrimination based on national origin (Hispanic) when he was
not selected for the position of TANS MGR.2 During the pre-Complainant
process, Complainant agreed to mediate his allegations. The parties
engaged in Mediation and entered into the SA, resolving Agency
No. 1F-908-0014-08. On January 7, 2009, Complainant alleged that the
Agency was in breach of the SA.
The SA signed by the parties stated that the parties:
agree that contingent upon the Mgr [unclear symbol] and transportation
job at the Anaheim facility becoming vacant and or otherwise available
within the next 180 days, [Complainant] will be permanently placed in
that position.
In his letter of January 7, 2009, Complainant asserted his belief that
the parties also made an oral agreement, that is, "it was verbally
mentioned in the mediation that the person holding the position would
be offered a lowered level position with saved grade in order to make
the position available." He then asked the Agency to acknowledge this
clause, admitting "that was not stipulated in the agreement."
The Agency's Letter reminded Complainant that the SA stated that his
placement in the position was "contingent upon" the position becoming
vacant. Also, the Letter noted that the SA limited its promises to
"the next 180 days," or approximately in early January 2009. Next,
the Letter addressed his contention that, in addition to the words of
the written SA, a verbal agreement promised that the person holding the
position would be moved from the position. As to this matter, the Letter
stated that the Plant Manager (PM) clearly told Complainant that he had
no authority to take action to transfer or otherwise move the incumbent,
but he acknowledged offering to contact higher-level managers to request
that this be done. When he did so, however, he learned that all positions
were frozen due to the decreased mail volume and no position changes
could be made.
CONTENTIONS ON APPEAL
Complainant did not provide comments in support of his appeal.
The Agency asked that we affirm its determination that it did not breach
the SA.
ANALYSIS
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 stated that a settlement agreement constitutes
a contract between the employee and the Agency and that the ordinary
rules of contract construction apply. See Herrington v. Dep't of Def.,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
stated that the intentions of the parties are found in the terms of the
contract, and those terms control the contract's meaning, and not some
unexpressed intention. Eggleston v. Dep't of Veterans Affairs, EEOC
Request No. 05900795 (August 23, 1990). In ascertaining the intentions
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. U.S. Postal Serv., 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 document 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, the Agency agreed to place Complainant in the
position if it became vacant within the next 180 days. There is no
language, or suggestion of language, in the SA that promises that the
Agency would move the incumbent from the position. If Complainant wanted
to ensure that the Agency was obligated to move the incumbent from the
position then he should have insisted that language to that effect was
included in the SA. Thus, we agree with the Agency that it did not
breach the SA.
CONCLUSION
After a review of the record in its entirety and consideration of
statements submitted on appeal, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the Agency's Letter of April 14, 2009.
According, we find that the Agency did not breach the SA.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
____2/18/11______________
Date
1 The Letter of Determination refers to Agency No. 1F-908-0014-09,
while all other references in the record are to the agency number are
as above.
2 The record does not describe Complainant's claim to the EEO counselor,
however, based on his letter alleging breach and the SA, we surmise that
the claim is as stated.
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0120092467
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092467