0120063150
09-10-2007
Francisco A. Brizuela, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Francisco A. Brizuela,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200631501
Agency No. 4F920002806
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated April 6, 2006, finding that it was
in compliance with the terms of a June 18, 1985 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) The complainant (Mr. Francisco A. Brizuela), upon the completion
of military duty (Naval Amphibious Training) ending July 22, 1985, will
submit a request for re-instatement into the Amarillo, Texas post office
as a PTF Career Mail Carrier, PS-4.
(2) Upon the availability for Mailhandler position vacancies for
the Amarillo, Texas Post Office, the complainant's (Mr. Francisco
A. Brizuela's) request for reinstatement will be given full, fair, and
just consideration as per the guidelines of the ELM and P-11. [Emphasis
in original.]
(3) The complainant (Mr. Francisco A. Brizuela) is to serve a new
ninety (90) day Probationary period, if and/or when, there is favorable
consideration given to the re-instatement request.
In December 2005, 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
had failed to rehire him.
In its April 6, 2006 FAD, the agency concluded that it was not in breach
of the agreement. The agency noted that complainant contacted it in July
1985 seeking re-employment. In response to complainant's reinstatement
request, the agency informed him that, at the time, the Amarillo Post
Office was not hiring new employees, but that it would keep his letter
on file for one year. There is no indication that complainant pursued
the matter further either during that year or at anytime thereafter.
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, the Commission notes the settlement agreement was
signed in 1985. The Commission has consistently held that a complainant
must act with due diligence in the pursuit of his claim or the doctrine
of laches may apply. See Becker v. United States Postal Serv., EEOC
Appeal No. 01A45028 (November 18, 2004) (finding that the doctrine of
laches applied when complainant waited over two years from the date of
the alleged discriminatory events before contacting an EEO Counselor);
O'Dell v. Department of Health and Human Serv., EEOC Request No. 05901130
(December 27, 1990). The doctrine of laches is an equitable remedy under
which an individual's failure to pursue diligently his course of action
could bar his claim. Complainant waited approximately 20 years from the
date of the alleged events before he informed the agency of the alleged
breach. Complainant has failed to provide sufficient justification for
extending or tolling the 30-day limitation on notification to the agency
of an alleged breach of a settlement agreement required by 29 C.F.R. �
1614.504(a). Moreover, even if complainant had made a timely breach
claim, the Commission finds that complainant was not promised that he
would be rehired. He was only promised that his request would be given
fair consideration if the agency had available vacancies. There is
nothing in the record to establish that vacancies existed during the
relevant time frame for which complainant was not considered.
Accordingly, the agency's final decision finding no breach of the
settlement agreement is affirmed.
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
September 10, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
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0120063150
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063150