01A22013_r
08-26-2002
Kevin C. Hudson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kevin C. Hudson v. United States Postal Service
01A22013
August 26, 2002
.
Kevin C. Hudson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22013
Agency No. 4G-760-0269-01
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated January 30, 2002, finding that it
was in compliance with the terms of a March 28, 2001 settlement agreement.
On March 28, 2001, complainant and the agency entered into a settlement
agreement providing, in pertinent part, that:
[Complainant's] job will stay the same as now without change, unless
postal policy changes toward injured carriers.<1>
On January 16, 2002, complainant contacted the EEO office alleging that
the agency breached the March 28, 2001 settlement agreement when he was
required to train for new duties. Specifically, complainant claimed that:
1) on December 17, 2001, he was required to take scheme training with a
threat of being fired if he did not learn the scheme; 2) on January 11,
2002,he was required to attend training despite the settlement agreement's
provision that he would not change jobs or supervisor unless postal
policy changes toward injured carriers; and 3) on January 16, 2002, he
was required to attend window training despite his physical limitation,
which was not in his job description. <2>
Complainant also claimed that the agency harassed him by assigning
him new duties that he cannot perform due to his physical limitation.
According to complainant, these events constitute harassment, as well
as a violation of the settlement agreement.
In its January 30, 2002 decision, the agency concluded that the settlement
agreement had not been breached and that complainant's job duties had
not changed. The agency concluded that complainant's scheme and window
training was part of complainant's job duties as stipulated in his
Rehabilitation Job offer accepted on September 9, 2000.
The record reflects that on September 9, 2000, complainant accepted
a Rehabilitation Job Offer that specified complainant's job duties.
The Rehabilitation Job Offer provided in pertinent part that: �
[complainant] may learn schemes," and �will perform other duties as
assigned by management, within physical restrictions.�
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).
The Commission determines that complainant has failed to establish that
the required training identified by complainant in his breach claim
violated the settlement by changing his job duties. As the agency noted
in its final decision, the possibility of complainant being required to
learn schemes has been part of his job since he signed a Rehabilitation
Job Offer in September 2000. There is no evidence that the training
in question constitutes a breach of the subject settlement agreement by
causing a change in complainant's job duties.
Complainant, moreover, contends that the agency engaged in discriminatory
harassment when he was required to train for duties he cannot perform
because of his physical limitations. Pursuant to 29 C.F.R. � 1614.504(c),
allegations that subsequent acts of discrimination violate a settlement
agreement shall be processed as a separate complaint under 29 C.F.R. �
1614.106. Therefore, if complainant wishes to pursue these separate
claims through the EEO process, he is advised to initiate contact with
an EEO Counselor thereon.
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 26, 2002
__________________
Date
1The settlement agreement also provided that
a named agency official would be complainant's immediate supervisor,
and that when he is not on duty, another named agency official would
replace him; and that the agency would make an adjustment of .78 hours
to complainant's accumulated leave without pay. These provisions are
not at issue in the instant appeal.
2The record reflects that complainant also claimed that the agency
violated a �no lunch� policy. In its final agency decision of January
30, 2002, the agency noted that complainant had filed a formal complaint
on this matter in October 2001, which was being processed under Agency
No. 4G-760-0483-01.