01A21047_r
04-03-2002
Kenneth L. Wolf, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kenneth L. Wolf v. United States Postal Service
01A21047
April 3, 2002
.
Kenneth L. Wolf,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A21047
Agency No. 4F-913-0014-01
DECISION
Complainant appealed the agency's November 14, 2001 decision, which
concluded that the agency had not breached the settlement agreement
between the parties. On November 7, 2000, the parties resolved
complainant's complaint by entering into a settlement agreement which
provided, in pertinent part, that complainant would receive the following:
[Ms. X] agrees that information will be shared on a regular basis
to employees at safety talks and General Standups. Information will
include progress with the district regarding recognition awards, general
information of operations, and the input from the suggestion box.
[Complainant] agrees to use the suggestion box as part of the
input/feedback loop.
All parties agree that the jacket award system needs to have the
follow[ing] action items:
A. identify what method is in place
B. talk to personnel dept. to determine their activities
C. [Ms. X] will talk to the district regarding requests for jackets
D. a roster will be developed for people with number of years of service
and who has received awards or not.
[Ms. X] agrees to resume sick leave awards.
Employee Appreciation Day activities will include:
[a.] asking the union president to find out how other offices do
appreciation day
[b.] look at nonmonetary and creative approaches
[c.] [Ms. X] will talk to District office regarding funds.
All parties to this mediation, [complainant], [Mr.Y], [Ms. X], and [Mr. Z]
agree to meet in 3 weeks to share information [and] progress reports,
in order to access future action plans.
By letter to the agency dated August 24, 2001, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency breached the settlement agreement
when: (1) the agency issued merit awards instead of sick leave awards
in 3 separate standups; (2) the agency failed to issue sick leave awards
to those qualified; (3) the agency failed to issue all the 25 year polo
shirts and 30/35 year jackets to employees who qualified; and (4) the
agency has not had an employee appreciation day in years.
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 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).
Regarding complainant's first allegation, we find that complainant has
not shown breach. Complainant argues that merit awards instead of sick
leave awards were issued in 3 standups. The settlement agreement does
not require awards, sick or merit, to be given during standups.
Regarding complainant's second allegation, we find that complainant
has not shown breach. Complainant argues that the agency failed to
issue sick leave awards to those qualified. Provision 4 requires the
agency to resume sick leave awards. The record includes 2 sick leave
awards that were issued on July 10, 2001, one of which was issued to
complainant. Complainant has not shown breach of provision 4 of the
settlement agreement.
Regarding complainant's third allegation, we find that complainant has
not shown breach. Complainant argues that the agency failed to issue
shirts and jackets. There is no provision of the settlement agreement
that requires jackets and shirts to be awarded.
Regarding complainant's fourth allegation, we find that complainant
has not shown breach. Complainant argues that the agency has not had
an employee appreciation day in years. Provision 5 of the settlement
agreement does not specify when the agency will hold an employee
appreciation day. Based upon the present record, we do not find
that provision 5 has been breached. See Gomez v. Department of the
Treasury, EEOC Request No. 05930921 (Feb. 10, 1994) (where time frame
for fulfillment of terms of settlement agreement is not specified,
terms must be fulfilled within a "reasonable" amount of time).
Complainant has not shown how any portion of the settlement agreement
has been breached by the agency. We note that complainant, on appeal,
attempts to raise other allegations of breach. Pursuant to 29 C.F.R. �
1614.504(a), complainant shall notify the EEO Director, in writing, of
the alleged noncompliance. Complainant did not raise the new allegations
with the EEO Director. Therefore, we will not make a determination on
complainant's new allegations of breach.
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
April 3, 2002
__________________
Date