01A23129_r
08-08-2002
Roy R. Rodgers, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Roy R. Rodgers v. United States Postal Service
01A23129
August 8, 2002
.
Roy R. Rodgers,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23129
Agency No. 4-J-604-0132-00
DECISION
Complainant appeals from the agency's April 3, 2002 decision which
concluded that the agency was not in breach of a settlement agreement
entered into between the parties. On September 10, 2001, the parties
resolved complainant's complaints by entering into a settlement agreement
which provided, in pertinent part, that complainant would receive the
following:
It is agreed between the parties that the complainant will be reinstated
to the position of Part-time flexible city letter carrier at the Downers
Grove, IL Post Office. It is agreed and understood that the Complainant
will be assigned to the Woodridge, IL Branch. It is further agreed
and understood that the reinstatement will be effective on September
22, 2001. It is further agreed and understood that the Complainant
is not entitled to any backpay as a result of this settlement. It is
further agreed and understood that the Complainant will be provided
training at the District's Carrier College. It is further agreed and
understood that the Complainant will serve a new probationary period and
that continued employment will be contingent upon successful completion
of that probationary period.
Complainant, by letter dated January 10, 2002, alleged that the agency
breached the settlement agreement. Specifically, complainant argues
that the agency breached the settlement agreement by terminating him on
December 28, 2001, when the settlement agreement provides for continued
employment upon successful completion of the probationary period, which
ended on December 20, 2001.
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. 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).
Complainant argues that, pursuant to the settlement agreement, his
effective reinstatement date was on September 22, 2001, thereby making
his 90 day probationary period end on December 20, 2001. Complainant
argues that the agency breached the settlement agreement when he was
terminated, on December 28, 2001, after successfully completing the
probationary period.
The agency argues that since complainant did not successfully complete his
probationary period, the termination was not a breach of the settlement
agreement.
Although the settlement agreement provides that complainant will be
reinstated on September 22, 2001, he was not reinstated until October
6, 2001, as evidenced by the Notification of Personnel Action Form.
According to a memorandum dated January 13, 2002, and verified by
an affidavit dated April 3, 2002, the agency attempted to contact
complainant on numerous occasions in order to process his reinstatement.
Complainant did not return the agency's numerous telephone calls until
September 19, 2001. Therefore, complainant could not be reinstated
until the following pay period which was October 6, 2001. We find
that the agency, in good faith, attempted to comply with the settlement
agreement in regards to reinstating complainant by September 22, 2001.
Therefore, we find that the agency is not in breach of the settlement
agreement by reinstating complainant on October 6, 2001.
According to the Notification of Personnel Action Form, complainant
was reinstated on October 6, 2001, with a probation period ending on
January 3, 2002. Since complainant was terminated on December 28, 2001,
he did not successfully complete the probationary period. Under the
terms of the settlement agreement, complainant's continued employment
is contingent upon successful completion of the probationary period.
Therefore, complainant has not shown breach of the settlement agreement.
The agency's decision finding no breach of the settlement agreement
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
August 8, 2002
__________________
Date