01a55236_r
12-21-2005
Michael C. Milner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael C. Milner v. United States Postal Service
01A55236
December 21, 2005
.
Michael C. Milner,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55236
Agency No. 4K-230-0076-02
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated July 8, 2005, finding that it was in
compliance with the terms of the February 2, 2004 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 February 2, 2004 settlement agreement provided, in pertinent part,
that:
1. Assignment to Another Station. USPS agrees to make, and Employee
agrees to accept, a Rehab Job Offer for a Modified Clerk's Position at
Pocoshock Station, Richmond, Virginia to be effective February 2, 2004.
As stated in the Rehab Job Offer, dated February 2, 2004, his days off
will be Wednesdays and Sundays and his regular working hours are from 9
a.m. to 5:30 p.m. Employee will not work at more than one station per
day other than his primary assignment.<1>
By letter to the agency dated June 8, 2005, complainant claimed that the
agency breached the settlement agreement, and requested that the agency
specifically implement its terms. Specifically, complainant claimed that
on May 19, 2005, he received a letter from agency management identified
as �Advanced Notice - Involuntary Assignment�. Therein, the agency stated
that a new APPS machine will reduce the number of full-time regular craft
positions needed in the Richmond facility, by eighty-one employees. The
agency indicated that Article 12 of the National Agreement provides that
when the need to excess employees arises, the excessing is accomplished
by �juniority and that the affected employees are to receive �not less
than 60 days advance notice, if possible.� The agency then informed
complainant that he was identified as one of the junior clerk craft
employees, and that he was thereby subject to involuntary reassignment.
The agency further indicated that the reassignment could be outside
of the clerk craft within the installation where he is employed, or
both within or outside of the clerk craft outside the installation, in
accordance with the provisions of Article 12 of the National Agreement.
Complainant further claimed that he received a response to his May 20,
2005 inquiry letter in which management "upheld [a] the May 11, 2005
letter and went on to say that my February 2, 2004 E.E.O.C. Settlement
Agreement was basically worthless."
In its July 8, 2005 final decision, the agency found there was no breach
of the February 2, 2004. Specifically, the agency noted that according
to the Manager, Labor Relations (Manager), management complied with
the terms of the settlement agreement. The agency further noted that
according to the Manager, due to the arrival of APPS machines, excessing
would be done according to seniority. The agency noted that the Manager
stated that complainant had not yet been reassigned but that it was very
possible that he would be involuntary reassigned.
On appeal, complainant contends that in accordance with the terms of
the settlement agreement, the agency "cannot assign me except by mutual
written agreement." Complainant further states that the agency breached
the settlement agreement by sending him the Advanced Notice-Involuntary
Reassignment letter.
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).
The agency properly found no breach of the February 2, 2004 settlement
agreement. The record contains an affidavit from the Manager. Therein,
the Manager stated that complainant's inquiry letter dated May 20, 2005
was referred to him by the Richmond Postmaster. The Manager stated
that on June 1, 2005, he sent a letter to complainant informing him
that "the advance notice of involuntary reassignment he had received
dated May 11, 2005 explains that the notice is based on the new APPS
machine." The Manager further stated that the May 11, 2005 letter
also put complainant on notice that he "has been identified as one of
the junior 81 clerk craft employees within the installation and thereby
is subject to be excessed out of the installation." The Manager stated
that after a review of the settlement agreement, he did not find anything
that exempted complainant from the National Agreement. Furthermore, the
Manager stated that "when and if the time comes to involuntary reassign
him, management have to modify a position in the gaining office to meet
his medical restrictions, but that he remained subject to excessing in
accordance with the National Agreement."
Given the present record, the Commission determines that the agency
has fulfilled its affirmative obligations pursuant to the settlement
agreement, and the Commission AFFIRMS the agency's finding of no breach.
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
December 21, 2005
__________________
Date
1The settlement agreement also provided that the agency would provide
complainant with one course of training in "Sheme;" and provide
complainant with three shirts and one apron per calendar year.
These provisions are not at issue in the instant appeal.