01a54814
12-08-2005
Gordon L. Gee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gordon L. Gee v. United States Postal Service
01A54814
12-08-05
.
Gordon L. Gee,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54814
Agency No. 4F-940-0014-05
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 7, 2005, finding that it was in
compliance with the terms of the December 13, 2004 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:
Parties agree that [Complainant] will be allowed to request light duty
under the provisions of Article 13 (of the National Collective Bargaining
Agreement) without interference from the injury compensation office.
In a letter dated January 21, 2005, complainant alleged that the agency
breached provision (A), and requested that his complaint be reinstated.
Specifically, the complainant claimed that a letter he received dated
December 13, 2004 from the Postmaster denying his light duty request
made reference to his medical restrictions and the fact that he had
previously turned down two light duty assignments. Complainant alleges
that the Postmaster would not have known he turned down two prior job
offers without consulting the injury compensation office.
This matter initially came before the Commission in an appeal from the
agency's decision finding that it had fully complied with provision
(A) of the instant agreement. In Gee v. United States Postal Service,
EEOC Appeal No. 01A52497 (May 18, 2005), the Commission was unable to
determine from the evidence of record if the agency had fully complied
with provision (A) of the agreement between the parties. The Commission
vacated the agency's determination that it complied with the December 13,
2004 agreement, and remanded the matter to the agency for processing in
accordance with the Commission's order. Specifically, the Commission
ordered the agency to supplement the record with documentation, such as
an affidavit from the agency's Manager of Injury compensation, indicating
whether he interfered with complainant's request for light duty following
the execution of the settlement agreement. The Commission also ordered
the agency to provide an affidavit from the Postmaster regarding the
denial of complainant's light duty assignment.
In its June 7, 2005 FAD, the agency again concluded that it complied
with provision (A) of the agreement. The agency provided the Commission
with an affidavit from the Manager, Injury Compensation indicating
that he honored the December 13, 2004 settlement agreement and was not
aware of the decision made by the Postmaster regarding complainant's
light duty request. The affidavit further indicated that the involved
Postmaster did not consult him prior to making her decision regarding
complainant's request.
The record also contains an affidavit from the Postmaster indicating
that she made her decision to deny complainant's light duty request as
a result of her experience with the matter involving complainant and
not based on any information received from any third party including
the injury compensation office.
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 the agency has provided sufficient
evidence that it complied with the provision (A) of the settlement
agreement at issue. Based on the plain meaning rule discussed above,
the Commission finds that the affidavits provided by the Manager,
Injury Compensation and the Postmaster, support the agency's finding
that complainant was allowed to request light duty without interference
from the injury compensation office. Complainant has failed to present
persuasive evidence, other than his bare assertion, that the agency
failed to comply with provision (A). Moreover, the agency has provided
sworn testimony from its officials as ordered by the Commission, that
it honored provision (A) of the agreement.
Accordingly, the agency's decision finding no breach of provision (A)
of the December 13, 2004 settlement agreement is AFFIRMED for the reasons
set forth herein.
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
____12-08-05______________
Date