0120103047
01-24-2013
Ming Z. Yu, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Ming Z. Yu,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120103047
Agency No. 5-E-1048-91
DECISION
Upon review, the Commission finds that the Agency properly determined that it did not breach a settlement agreement that the parties entered into resolving Complainant's complaint. See 29 C.F.R. � 1614.504. For the following reasons, we AFFIRM the Agency's determination not to reinstate Complainant's complaint.
BACKGROUND
On May 9, 1991, the parties resolved Complainant's complaint by entering into a settlement agreement which provided, in pertinent part, that Complainant would receive the following:
Complainant would be accommodated as per his acceptance of a [rehabilitation] job offer dated 5/1/91. His scheduled reporting time is 6:00 a.m. to 2:30 p.m. with Sunday and Thursday as his non scheduled days at the Hayward Main Post Office.
By letter to the Agency dated February 17, 2010, Complainant alleged that the Agency breached the settlement agreement when his rehabilitation modified job was terminated. Specifically, Complainant claimed that on February 12, 2010, he was notified that he was assigned to a residual vacancy #807, Sales, Services and Distribution Associate position. The Agency responded that it did not breach the settlement agreement.
ANALYSIS AND FINDINGS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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 indicated that Complainant had been in his rehabilitation job at the Hayward Main Post Office since 1991.1 However, the Agency stated that the Hayward post office was excessing its clerks (11 clerks in 2008, and 10 clerks in 2010), due to declining mail volume and workload. The Agency stated that the collective bargaining agreement stated that clerks, such as Complainant, could not be excessed if they were unassigned regulars. Thus, Complainant was offered three bid choices, but he failed to choose any of them. As a result, the Agency assigned Complainant to a Sales Service Associate bid for Castro Valley.
The settlement agreement did not provide that Complainant would hold the position that was referenced in the settlement agreement forever. The Agency has provided a reason for removing Complainant from the position he held for over 18 years after the agreement was entered into. There is no indication that the Agency's explanation was in bad faith. Therefore, we find that the Agency has not breached the agreement. If Complainant believes that the new position to which he was assigned was a subsequent discriminatory action, then he should contact an EEO Counselor pursuant to 29 C.F.R.� 1614.105. The Commission does not address whether such EEO Counselor contact would be timely.
CONCLUSION
Accordingly, the Agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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, DC 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 (S0610)
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 (Z0610)
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
January 24, 2013
__________________
Date
1 The record indicates that Complainant previously claimed the Agency was in breach of the instant settlement agreement. The Agency determined that it did not breach the settlement agreement when Complainant was assigned to its mail processing unit on March 8, 2001. The Commission, in EEOC Appeal No. 01A21030 (March 20, 2002), found the Agency breached the settlement agreement and ordered the Agency to place Complainant back to his position of Modified Distribution Clerk as accepted in the May 1, 1991 offer and referenced in the settlement agreement.
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0120103047
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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