01A43788_r
10-29-2004
Frederick Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Frederick Brown v. United States Postal Service
01A43788
October 29, 2004
.
Frederick Brown,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43788
Agency No. 1F-946-0108-03
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated April 2, 2004, finding that it was in
compliance with the terms of the October 30, 2003 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
(1) [Complainant] will be assigned to a �Hold Down� on Tour One for that
position is available starting October 31, 2003.
(2) [Person A] will research whether [complainant] is due out of schedule
pay and will inform [complainant] and the union of his findings by
November 3, 2003.
(3) [Person B] and [Person C], [Person D], [Person A] and [complainant]
will meet within the next 2 weeks to determine whether [complainant's]
inability to bid on the last open bid for Motor Vehicle Driver was correct
and to rectify the situation if it was found to be an incorrect decision.
(4) [Person A] agrees to treat [complainant] in a fair and equitable
manner.<1>
By letter to the agency dated November 29, 2003, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that he has not heard from Person A in over a
month despite the agreement stating that a meeting was to occur within
two weeks.
In its April 2, 2004 decision, the agency concluded that the agreement
was not breached. The agency stated that with regard to provision (1),
Person A noted that complainant assumed the hold down position on October
30, 2003. With regard to provision (2), the agency noted that Person A
stated that complainant was not entitled to out of schedule pay because
during the last bid period his medical restrictions prevented him from
being able to drive. The agency stated that Person A's response to
complainant was sent on March 24, 2004, because of operational needs
during the Christmas holiday and an inability to meet with Person C.
On appeal complainant states that Person A did not follow the agreement
since he failed to respond until March 24, 2004. Complainant disputes
Person A's statement that medical documentation restricted him from
full duty. Complainant argues that at no time did Doctor 1 state that
he could not drive. Complainant states that the job offer he signed
was for one month; however, he stayed in that department for three months.
The record contains Person A's statement dated March 24, 2004. In that
statement, Person A states that complainant assumed the hold down bid
on the evening of October 30, 2003, on Tour One. Person A states that
under the agreement he was to �research whether [complainant] was due
�out of schedule pay' because of [complainant's] inability to bid on the
last open bid for Motor Vehicle Driver was correct and to rectify the
situation if it was found to be an incorrect decision.� Person A states
that he failed to comply with the November 3, 2003 deadline because of
an inability to meet with Person C and the Christmas holiday period.
Person A states that during the last bid period, complainant's medical
restrictions at the time prevented him from being able to drive.
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 present case, we find that the agency substantially complied with
the terms of the October 30, 2003 agreement. Provision (2) states that
Person A will research whether complainant is due out of schedule pay and
will inform complainant and the union of his finding by November 3, 2003.
The agency stated in a March 24, 2004 letter, that complainant was not
entitled to out of schedule pay because during the last bid period his
medical restrictions prevented him from being able to drive. Although,
the agency failed to inform complainant and the union of its determination
by November 3, 2003, we find that the agency has substantially complied
with provision (2) of the agreement.
According to provision (3), the agency Person B, Person C, Person
D, Person A and complainant were to meet within the two weeks of the
agreement to determine whether complainant's inability to bid on the last
open bid for Motor Vehicle Driver was correct and to rectify the situation
if it was found to be an incorrect decision. In its final decision,
the agency concluded that complainant's medical restrictions prevented
him from bidding during the last bid period. Although complainant
claims that his medical documentation did not prevent him from driving,
we note the agreement stated that the agency would correct the situation
if complainant's ability to bid on the last open bid for the Motor Vehicle
Driver was found incorrect. Additionally, although the specified meeting
did not occur within the stated two weeks of the agreement, we find that
the agency has substantially complied with provision (3) of the agreement.
Finally, we note that complainant does not dispute the agency's contention
that he assumed the hold down position on Tour 1 on October 30, 2003.
Accordingly, the agency's decision 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
October 29, 2004
__________________
Date
1Although the terms of the settlement agreement
where not numbered by the parties, the Commission has numbered each
provision for ease and clarity.