0120093016
01-04-2010
Jess D. Freeman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Jess D. Freeman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120093016
Agency No. 1J626001500
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 9, 2009, finding that it was
in compliance with the terms of the July 26, 2000 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:
(1) The complainant will be voluntarily re-assigned from Tour I
MDO, EAS-18 to Tour II SDO, EAS-16 with non-scheduled days Saturday and
Sunday. It is further agreed that plant manager [named individual], will
petition the District Manager to provide saved rate to the complainant
in accordance with applicable Postal rules and regulations. Reassignment
to be effective August 12, 2000."
By letter to the agency dated March 23, 2009, 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 violated the agreement when on February 2,
2009, complainant was reassigned to Tour I as a level 17 Supervisor
Distribution Operation.
In its June 9, 2009 FAD, the agency concluded that it did not breach the
agreement as alleged. According to the agency, a reduction in staffing
of clerks and mail handlers down to 12 people crated an ineffective
ratio of supervisors to mail processing clerks/handlers. Therefore,
the agency argues, complainant was reassigned to Tour 1 based on the
operational needs of the agency.
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 did not breach the agreement
between the parties by reassigning complainant to Tour I due to business
necessity after complainant had held the position on Tour II for a period
of nine years. The agency has established that its operational needs
necessitated the reassignment of complainant from Tour II back to Tour I.
The Commission has held that a settlement agreement that places personnel
into specific duties, without defining the length of service or other
elements of the employment relationship, will not be interpreted to
require the agency to place the personnel in the identified job duties
or positions in perpetuity. See Parker v. Department of Defense, EEOC
Request No. 05910576 (August 29, 1991); Hamilton v. United States Postal
Service, EEOC Appeal No. 01A22268 (July 5, 2002)(settlement agreement
granting complainant a certain work schedule was not breached when
after assigning complainant the promised work schedule for five months,
complainant's schedule was again changed to meet operational needs of
the agency). We find therefore, that the agency substantially complied
with the terms of the agreement for nine years.
The agency's determination of compliance with the July 26, 2000 settlement
agreement is 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
January 4, 2010
__________________
Date
2
0120093016
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120093016