0120090686
04-09-2009
George A. Cousart, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
George A. Cousart,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090686
Agency No. 4F940010406
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated October 22, 2008, finding that it was
in compliance with the terms of the July 27, 2006 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:
(4) The agency also agrees that, contingent upon counselee's updated
medicals permitting him to return to the work environment at Civic Center
Box Station, San Francisco; it will reassign counselee to said facility
in conjunction with counselee's medical restrictions. Concomitantly,
counselee agrees to provide the agency a written request to be reassigned
to the Civic Center.
By letter to the agency dated May 20, 2008, 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 breached the agreement when he
received notification from the agency to report to the agency's location
at Steiner Station effective May 24, 2008.
In its October 22, 2008 FAD, the agency concluded that it had not breached
the agreement as alleged by complainant. Specifically, the agency
indicates that as a result of a grievance decision dated July 18, 2008,
complainant was returned to his assignment at the Civic Center Station.
In his appeal statement to the Commission regarding the instant matter,
the complainant acknowledges that following a grievance filed by
his union, regarding the assignment to Steiner Station, complainant
was returned to duty at the Civic Center Station and was awarded
out-of-schedule pay for the period of June 23, 2008 through July 13, 2008.
Complainant maintains on appeal that although he is now working at the
Civic Center Station under the terms of the July 27, 2006 settlement
agreement, he should be compensated for the agency's breach and paid for
the leave he used prior to his assignment to the Civic Center Station.
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, we find that complainant has failed to demonstrate
that the agency breached the agreement as alleged. Provision 5 of
the July 27, 2006 settlement agreement obligates the agency to assign
complainant to the Civic Center Station "contingent upon counselee's
updated medicals" permitting him to work there. On appeal, complainant
indicates that he provided the requisite medical documentation as provided
in the settlement agreement. Consequently, the agency maintains that
complainant was assigned to the Civic Center Station in accordance with
the settlement agreement.
Upon review of the record herein, the Commission finds that complainant
has failed to demonstrate that the agreement was breached as alleged.
Specifically, we note that the agreement does not require that
complainant's assignment be completed in a particular time frame, nor
does the agreement require the agency to compensate complainant for any
reason during the time between the execution of the agreement and the
assignment to the agency's Civic Center Station following proper medical
documentation. Moreover, the Commission notes that any alleged breached
was cured following the July 18, 2008 grievance decision which resulted
in complainant being assigned to the desired Civic Center Station.
We find therefore that the agency's determination that it complied with
the July 27, 2006 settlement agreement between the parties was proper.
The agency's decision is hereby affirmed for the reasons set forth
herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
April 9, 2009
__________________
Date
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0120090686
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090686