01A23051_r
08-08-2002
Charles A. Mosher, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Charles A. Mosher v. United States Postal Service
01A23051
August 8, 2002
.
Charles A. Mosher,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23051
Agency No. 1B-065-0031-02
DECISION
Complainant filed an appeal from a final decision by the agency dated
April 18, 2002, finding that it was in compliance with the terms of the
April 12, 2001 settlement agreement into which the parties entered.
The settlement agreement provided, in pertinent part, that:
With [complainant's] voluntary resignation for medical reasons, the USPS
will cleanse [complainant's] personnel file of all disciplinary actions.
By his letter of April 8, 2002, complainant alleged that the agency was
in breach of the settlement agreement when the agency interfered with
complainant's application for disability retirement.
In its April 18, 2002 decision, the agency concluded that complainant's
application for disability retirement was not accepted because the Office
of Personnel Management (OPM) found that complainant was not disabled
within the meaning of retirement law. The agency further found that
complainant's official personnel file (OPF) had not been given to OPM
and that all disciplinary documents had been removed as required by
the settlement agreement. The agency concluded that no breach of the
settlement agreement occurred.
On appeal, complainant submits a copy of a letter from OPM, dated March
21, 2002, indicating his application for disability retirement has been
rejected. Complainant contends that the contents of the March 21, 2002
letter verifies that the agency supplied OPM with information regarding
his prior disciplinary matters whether or not his OPF was actually sent
to OPM, and that violates the April 12, 2001 settlement agreement.
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).
In the instant case, we find that nothing in the record indicates
complainant's OPF was actually transmitted to the Office of Personnel
Management. Similarly, complainant has not demonstrated that documents
pertaining to discipline remain in his OPF and were not purged or
cleansed as required by the plain language of the settlement agreement.
Significantly, the settlement agreement does not prohibit the agency
from communicating with OPM regarding the circumstances of complainant's
agency employment. We find that complainant has not shown the agency
failed to comply with provision 3 of the settlement agreement.
Accordingly, the agency's decision finding no breach of the April 12,
2001 settlement agreement occurred 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
August 8, 2002
__________________
Date