Manuel Mota, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 21, 2005
01a46117 (E.E.O.C. Jan. 21, 2005)

01a46117

01-21-2005

Manuel Mota, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Manuel Mota v. United States Postal Service

01A46117

January 21, 2005

.

Manuel Mota,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A46117

Agency No. 4G-780-0061-04

DECISION

Complainant appeals to the Commission from the agency's August 17,

2004 decision which concluded that there was no breach of settlement

agreement. On January 28, 2004, the parties resolved complainant's

concerns by entering into a settlement agreement which provided, in

pertinent part, that:

We mutually agree to conduct an interim route adjustment with

[complainant's] route 04032 on the week of March 3/6/04 through 3/12/04.

The count will involve counting and completing of PS Form 1838C, or

Office Function. It is understood that [complainant's] Street Time is

6:30 on an average day, with 30 minutes additional on days with coverage.

By complaint dated June 9, 2004, complainant alleged discrimination on the

bases of race, age, and retaliation when the agency breached its January

28, 2004 settlement agreement by not properly adjusting his route. The

agency found that after a route count, the agency increased complainant's

route time by 1 hour 35 minutes to a total time of 8 hours 5 minutes.

The agency concluded that it had not breached the settlement agreement.

EEOC Regulation 29 C.F.R. � 1614.504(a) provides that �the complainant

shall notify the EEO Director, in writing, of the alleged noncompliance

within 30 days of when the complainant knew or should have known of

the alleged non-compliance.� 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).

Complainant has not disputed the agency's claim that complainant's route

was adjusted, after a route count, to 8 hours 5 minutes. The settlement

agreement did not provide that complainant's route would be adjusted to

any particular time. Therefore, we find that complainant has failed to

show that the agency breached the agreement.

On appeal, in addition to his breach of settlement agreement arguments,

complainant argues that the agency has failed to address his complaint

of discrimination. Complainant alleged breach of the settlement

agreement in his EEO complaint dated June 9, 2004. Complainant also

alleged in his complaint discrimination on the bases of age, race,

and retaliation, when his route was not adjusted per his settlement

agreement. The Commission finds that the agency properly adjudicated

the matter as a breach claim. Complainant's complaint fails to state an

independent claim of discrimination and is properly dismissed pursuant

to 29 C.F.R. � 1614.107(a)(1). The complaint of discrimination is not

separate in this matter from the breach claim. Alleging a discriminatory

breach of a settlement agreement does not state an independent claim of

discrimination. Furthermore, there would have been no route adjustment

but for the settlement agreement. Thus, the claim of discrimination

can not be separated in the instant matter from the breach claim.

The agency is deemed to have dismissed the complaint and we find such

a dismissal to be proper.

The agency's decision finding no breach of settlement agreement and

dismissing the complaint 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

January 21, 2005

__________________

Date