0120071013
12-24-2008
Michael C. Keels, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael C. Keels,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071013
Agency No. 4E-980-0107-06
DECISION
Complainant filed a timely appeal with this Commission from a letter of
determination by the agency dated November 20, 2006, finding that it
was in compliance with the terms of the September 1, 2006 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 September 1, 2006 settlement agreement provided, in pertinent part:
2. By September 30, 2006, [Manager Customer Service Operations (M1)]
will arrange to provide [Complainant] with noise reduction headphones.1
The record reflects that by letter to the agency dated October 22, 2006,
complainant alleged that the agency was in breach of provision 2 of the
settlement agreement.2 Specifically, complainant alleged that the agency
failed to provide him with noise reduction headphones by September 30,
2006.
In its November 20, 2006 letter of determination, the agency found no
breach. The agency stated that according to M1, he acknowledged he was
late in ordering the noise reduction headphones. M1 stated that the
headphones were sent to complainant's office around October 28, 2006
but the Station Manager (SM) returned them to him (M1). Specifically,
M1 stated that according to SM, complainant refused the headphones
indicating that he no longer wanted them because they were late.
M1 stated that he was keeping the headphones in his office in case
complainant changed his mind and decided he wanted them. The agency
determined that even though a delay occurred in ordering the headphones,
the agency was in compliance of provision 2.
On appeal, complainant acknowledges that on October 26, 2006, SM informed
him that the headphones had arrived and that they were in her office.
Complainant states that on October 28, 2006, an identified supervisor
"presented me with the headphones and a receipt. I told her I could not
[ac]cept them, they were too late." Complainant further states that
when he complained about M1 not providing him with the headphones in a
timely manner, management called him "'petty' and accused [me] of being
nothing more than a mere trouble maker."
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).
Upon review, we agree that the agency substantially complied with
provision 2 of the settlement agreement. Moreover, we have held
that the failure to satisfy a time frame specified in a settlement
agreement does not prevent a finding of substantial compliance of its
terms, especially when all required actions were subsequently completed.
Lazarte v. Department of the Interior, EEOC Appeal No. 01954274 (April 25,
1996); Sortino v. United States Postal Service, EEOC Request No. 05950721
(November 21, 1996), citing Baron v. Department of the Treasury, EEOC
Request No. 05930277 (September 30, 1993) (two weeks delay in transfer
of official letter of request rather than letter of apology found to
be substantial compliance); Centore v. Department of Veterans Affairs,
Appeal No. 01A04637 (November 2, 2000) (a few days after sixty day time
period for compliance not a material breach of settlement agreement).
Accordingly, the agency's finding of no breach of provision 2 of the
September 1, 2006 settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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, D.C. 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
December 24, 2008
Date
1 The settlement agreement also provided for management to provide
complainant with a copy of his most recent PS Form 1840 by September 8,
2006; and that, when questioned by someone other than the steward about
grievance activity, the Stating Manager agreed to say, "The union has
a right to file grievances." Those provisions are not at issue in the
instant appeal.
2 The record does not contain a copy of complainant's October 22, 2006
letter to the agency alleging breach of the settlement agreement.
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0120071013
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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0120071013