01a43976
10-07-2004
Robert J. Nashwick, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert J. Nashwick v. United States Postal Service
01A43976
October 7, 2004
.
Robert J. Nashwick,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43976
Agency No. 1H-302-0030-03
DECISION
Complainant filed a timely appeal with this Commission from an agency
final decision, dated May 17, 2004, finding that it was in compliance
with the terms of a December 12, 2002 settlement agreement. See 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The December 12, 2002 settlement agreement provided, in pertinent part,
that:
[Complainant] will be approved for a Special Achievement Award by
[a named Senior Operations Manager]. The award will be completed and
forwarded to the National Finance Center by Friday, December 13, 2002.
A copy will be given to [complainant].
By letter to the agency dated February 4, 2003, complainant alleged
that the agency breached the settlement agreement, and requested that
the agency implement its terms. Specifically, complainant claimed the
agreement required the Senior Operations Manager to approve the Special
Achievement Award that his manager submitted on complainant's behalf.
While the manager approved the award, complainant alleged that the Senior
Operations Manager reduced the amount of the award from $1,000 to $550,
and that complainant was therefore owed $450.
In its decision, the agency found no breach. The agency found that
the award authorization form was signed on December 12, 2002; and that
the value of the award was $550, and that a check was generated in the
net amount of $330.82. While the agency acknowledges that the amount
submitted is lesser than the amount set forth in the notations section
of the award form by the Maintenance Manager, the agency determined that
the settlement �does not specifically state the dollar amount of the
award that [the Senior Operations Manager] would approve and forward
for payment.�
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 settlement agreement requires the Senior Operations Manger to approve
a Special Achievement Award for complainant. Complainant acknowledges
that the award was approved. As noted above, he contends that the amount
of the award was changed by the Senior Operations Manager, in violation of
the agreement. The Commission disagrees. The agreement does not address
the amount of the award, but simply obligates the agency to approve it.
If complainant sought to receive an award for $1,000, he should have had
his intentions reduced to writing and included in the settlement terms.
Accordingly, the agency's decision finding no settlement breach 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
October 7, 2004
__________________
Date