0120072161
08-05-2009
Jon W. Han, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jon W. Han,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072161
Hearing Nos. 310-97-5402X, 310-98-5241X
Agency Nos. 4G-730-1043-96, 4G-730-0049-97
DECISION
Upon review, the Commission finds that the agency's decision dated
March 22, 2007, not to reinstate complainant's complaints of unlawful
employment discrimination that the parties had settled is proper. See 29
C.F.R. � 1614.504. On May 11, 1998, the parties entered into a settlement
agreement resolving the complaints. The settlement agreement provided,
in pertinent part, that:
Complainant will be rehabbed into a position. This means that a permanent
job will be formulated to fit complainant's medical restrictions within
the carrier craft. Complainant will retain his current schedule.
Complainant's rehab job will be to the Moore Branch. Complainant
understands that the rehab job will not entail duties on the street
other than those he is currently performing.
In accordance with the terms of the settlement agreement, on May 22, 1998,
complainant was offered and signed his formulated job offer as a Modified
City Letter Carrier with duty hours of 7:30 am - 4 pm, effective June 6,
1998. The duties of this assignment included: change locks on NDCBU'S;
enter station input; other computer work; deliver priority and express
mail that arrives late; case on routes as needed; and other duties as
assigned within restrictions.
Thereafter, on August 26, 2006, 8 years after the settlement agreement,
complainant alleged that the agency breached the settlement agreement
when he was assigned to carry relays/shifts off routes since June 1996,
and his starting time was changed to 8:45 am effective July 8, 2006.
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). Although the Commission is not
generally concerned with the adequacy or fairness of the consideration in
a settlement agreement as long as some legal detriment is incurred as part
of the bargain, when one of the parties to a settlement incurs no legal
detriment, the agreement will be set aside for lack of consideration.
See Morita v. Department of the Air Force, EEOC Request No. 05960450
(December 12, 1997).
Upon review, we find that the agency complied with the terms of the
settlement agreement at issue. Complainant's manager indicated that in
June 2006, the duties of entering station input and other computer work
were no longer available for complainant to perform due to the agency's
data privacy and security restrictions. Specifically, the manager stated
that the station input was no longer performed at the local unit level
and the ACE computer application did not allow access for complainant
to perform other computer work that he previously performed. The agency
stated that the change of complainant's work hours were appropriate for
the duties now being performed. Based on the foregoing, we find that
because of the changed circumstances, the agency did not breach the
terms of the settlement agreement.
In addition, we note that complainant is alleging that subsequent
acts of discrimination violated the settlement agreement, which should
be processed as a separate complaint of discrimination pursuant to �
1614.106. See 29 C.F.R. � 1614.504(c). If complainant wishes to pursue
such discrimination claims through the EEO process, then complainant
may raise his claim of subsequent discrimination by contacting an EEO
Counselor pursuant to 29 C.F.R. �1614.105 if he has not already done so.
The Commission does not address in this decision whether such EEO
Counselor contact would be considered timely.
Accordingly, the agency's decision finding no settlement breach is
AFFIRMED.
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
8/5/09
__________________
Date
2
0120072161
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013