01985701
08-05-1999
Jeffrey Kleinman, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jeffrey Kleinman v. United States Postal Service
01985701
August 5, 1999
Jeffrey Kleinman, )
Appellant, )
)
v. )
) Appeal No. 01985701
William J. Henderson, ) Agency No. 4F-900-0103-97
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On July 11, 1998, appellant filed an appeal with this Commission when
the agency failed to respond to his request for reinstatement of his
complaint. Thereafter, the agency issued a final decision (FAD) dated
August 4, 1998, finding that it was in compliance with the terms of
the April 23, 1998 settlement agreement into which the parties entered.
See 29 C.F.R. ��1614.402, .504(b); EEOC Order No. 960, as amended.
Appellant and the agency entered into a settlement agreement in resolution
of Complaint No. 4F-900-0103-97. The settlement agreement indicated
that appellant agreed to withdraw his request for a hearing on his
EEO complaint and not institute a lawsuit, based upon the following
provision:
The Complainant shall be placed in a job assignment in the Computer
Forwarding Systems as follow:
Title Location Reporting Time Off Days
Mark-up Warehouse 2:00p.m.-10:45 p.m. Sunday/
Clerk, PS-4 Rotating
The above offer is contingent upon the Complainant qualifying for this
assignment in accordance with postal rules and regulations. This process
shall be done as soon as administratively possible.
By letter to the agency dated June 3, 1998, appellant alleged that the
agency was in breach of the settlement agreement and requested that
his complaint be reinstated for further processing. Specifically,
appellant alleged that the settlement agreement was vague and ambiguous
and therefore should not be binding. Appellant asserted that before
signing the settlement agreement he asked his Union representative about
the qualification requirement and explained that he could not type.
According to appellant, the representative told him not to worry, that
he did not need to know how to type, and that she had no doubt he could
pass the test.
On August 4, 1998, the agency issued a FAD, finding no breach of the
settlement agreement. The agency determined that appellant had been
offered a position as a Mark-Up Clerk, contingent upon his qualifying
for the position. Appellant did not qualify, however, when he failed
the typing exam. Subsequently, the agency offered appellant a Window
Clerk position, which he declined.
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. See
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).
In the instant case, we find that the agency has complied with the
settlement agreement. Applying the plain meaning rule, the settlement
language clearly states that an offer of the Mark-Up Clerk position was
contingent on appellant qualifying for the position. When appellant
failed to qualify, the agency was no longer required to offer him the
position. Therefore, the Commission finds that appellant's allegations
do not constitute a breach of the settlement agreement.
Accordingly, the agency's decision finding no breach of the settlement
agreement was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
August 5, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations