01a40119_r
07-27-2004
Jerry M. Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jerry M. Davis v. United States Postal Service
01A40119
July 27, 2004
.
Jerry M. Davis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40119
Agency No. 1G-721-0023-00
DECISION
Upon review, the Commission finds that the agency's decision not to
reinstate complainant's complaint of unlawful employment discrimination
that the parties had settled is proper. See 29 C.F.R. � 1614.504.
On August 10, 2000, the parties entered into a settlement agreement
resolving the complaint. The settlement agreement provided, in pertinent
part, that:
The 7-day suspension will be removed from employee's record by August
12, 2000.
Thereafter, complainant alleged that the agency breach the settlement
agreement when the agency failed to remove the 7-day suspension.
On September 9, 2003, the agency issued its decision finding that it
did not breach the settlement agreement.
The Commission has held that settlement agreements are contracts between
the complainant and the agency and it is the intent of the parties
as expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984).
The record indicates that the 7-day suspension was expunged from
complainant's records under the settlement agreement. On appeal,
complainant does not dispute the removal of the suspension. However,
complainant contends that during the settlement agreement, his steward
was informed that the suspension and the incidents occurring in 2000
which led to that suspension would not be referenced in other proceedings
or meetings. Specifically, complainant indicates that an agency official,
during a meeting on September 17, 2003, concerning hazard reports charging
him with unsafe towmotor operation, mentioned the previous incidents
occurring in 2000.
The Commission finds that complainant's contentions are beyond the
scope of the settlement agreement since they were not specifically
expressed therein. There was no requirement in the agreement that the
agency was not allowed to reference the incidents occurring in 2000.
If complainant wanted such a requirement placed on the agency, then he
should have had such a requirement included in writing in the agreement.
Despite complainant's contentions on appeal, the Commission does not find
that the instant settlement agreement is vague; nor does the agreement
lack a contemporaneous meeting of the minds. See Brown v. Department
of Defense, EEOC Request No. 05940628 (November 3, 1994); Mullen
v. Department of the Navy, EEOC Request No. 05890349 (May 18, 1989).
Accordingly, the agency's decision finding no breach of the settlement
agreement 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
July 27, 2004
__________________
Date