01A31699_r
05-15-2003
George Nixon, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
George Nixon, Jr. v. United States Postal Service
01A31699
May 15, 2003
.
George Nixon, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31699
Agency No. 4H-350-0147-02
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated December 30, 2002, finding that it was
in compliance with the terms of a June 26, 2002 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The June 26, 2002 settlement agreement provided, in pertinent part, that:
(2) That [a named Human Resources Specialist] will check with her
office concerning the MVO [Motor Vehicle Operator] register to see if
[complainant] has any eligibility left on that register.
(3) [Complainant] has stated his dissatisfaction concerning the time
he showed up for an interview but was not given an interview because
the interviewer needed 3 qualified applicants in order to conduct an
interview and also not receiving mail that was sent.
(4) [Complainant] wanted the postal office to be aware of his continued
visits to the personnel office to inquire about his employment status
during the course of his first initial exam (2-3 years) and his DD214
that was not returned after the 1st exam.
By letter to the agency dated November 7, 2002, complainant alleged
that the agency breached the settlement agreement, and requested that
his complaint be reinstated for further processing. Specifically,
complainant alleged that the agency breached provisions (3) and (4)
of the agreement when the Human Resources Specialist gave him the �same
nonchalant, irresponsible, attitude� after he shared his concerns about
not being hired for agency employment because the other two applicants
were not there for the interview.
In its December 30, 2002 final decision, the agency found there was
no breach of the June 26, 2002 settlement agreement. Specifically,
the agency found that provisions (3) and (4) are merely complainant's
statements. Further, the agency stated that it was the Human Resources
Specialist's determination that complainant was provided a copy of the
exams offered by the agency; and was informed that his Battery 470 and
MVO scores had expired and that the DCO register was no longer a valid
register.
The record contains the Human Resources Specialist's response to
complainant's allegations of breach. Therein, the Specialist stated
that following the execution of the settlement agreement, she checked
with her office concerning the MVO register, and informed complainant
that his �Battery 470" and MVO scores had expired and that his DCO
[Data Conversion Operator] register was no longer a valid register.
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 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).
Upon review, the Commission finds no breach of the settlement agreement.
We find that provisions (3) and (4) contained no affirmative agency
obligations. Instead, a fair reading of provisions (3) and (4) reflect
that they are merely expressions of complainant's dissatisfaction
with the agency, and his interest in having the agency made aware of
unsuccessful visits he had made to an agency personnel office. We note,
moreover, that consideration was exchanged in the settlement agreement,
as reflected in the agency's compliance with provision (2), which required
the Human Resources Specialist to check with her office concerning the
MVO register and find out if complainant had any eligibility left on
that register. We find that the record reflects that the agency met
this obligation. We find that complainant failed to show that the
settlement agreement was breached. Accordingly, the agency's finding
of no breach 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
May 15, 2003
__________________
Date