01A20151_r
04-25-2002
Michael Levine, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael Levine v. United States Postal Service
01A20151
April 25, 2002
.
Michael Levine,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20151
Agency No. 4A-088-0012-01
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated September 27, 2001, finding no breach of the terms
of the December 7, 2000 settlement agreement. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
�The Letter of Warning �10-12-2000' will be held in abeyance until
June 30th, 2001. [Complainant] agrees not to use more than six (6)
unscheduled sick leave days during this time period. Compliance by
[complainant] to this agreement, the Letter of Warning shall be removed.
If [complainant] exceeds the six (6) days of this agreement, the �Letter
of Warning' shall remain as in its original state of 2 yrs.�
By letter to the agency dated June 6, 2001, complainant alleged that
the agency breached the settlement agreement. Specifically, complainant
claimed that management violated the terms of the settlement agreement
when he was issued a Seven-Day Suspension on May 25, 2001, in which
the Letter of Warning identified in the settlement agreement was used
as a �prior element.� Complainant claimed that the six-month abeyance
period for the October 12, 2000 Letter of Warning had not expired and
that management should not have issued him a suspension by citing the
October 12, 2000 warning letter as a prior element.
In its September 27, 2001 final decision, the agency found no breach of
the December 7, 2000 settlement agreement. The agency stated that the
record shows that complainant's seven-day Suspension was subsequently
rescinded. The agency noted that a Postmaster stated that the May 25,
2001 suspension was issued because complainant failed to be regular on
nine occasions during the period of October 1, 2000 through May 25,
2001; but that after consulting with a Labor Relations Specialist,
he decided to rescind the suspension.
On appeal, complainant acknowledged that � . . . the suspension issued
to me on 5/25/2001 was rescinded. However, it was rescinded AFTER
I called and verbally related that a breach had occurred and AFTER
I actually wrote a letter concerning said breach in a letter to the
EEO Dispute Resolution Specialist. It seems to me that the breach in
question lends credence to my concern that the intent manifest in said
breach is an attempt to punish me and make an example of me regardless
of written agreements and/or contractual clarity.�
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. USPS, 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).
In the present case, the record indicates that the agency rescinded
the seven-day suspension that had been issued to complainant that had
cited the October 12, 2000 Letter of Warning as a �prior element.� The
Commission determines that, to the extent that the agency had breached the
agreement, the breach was cured. Accordingly, the Commission determines
that the agency's decision was proper and is hereby 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 25, 2002
__________________
Date