01A13741_r
08-29-2002
Robert E. Balzan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert E. Balzan v. United States Postal Service
01A13741
August 29, 2002
.
Robert E. Balzan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13741
Agency No. 1A-113-0022-98
Hearing No. 160-98-8590X
DECISION
Complainant filed an appeal with this Commission alleging that the agency
breached the terms of an August 7, 2000 settlement agreement. See 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The August 7, 2000 settlement agreement provided, in pertinent part, that:
The Complainant shall be given �priority consideration� for the
position of Manager of Distribution Operations, EAS Level 22 or above,
in the Brooklyn Processing and Distribution Center, Brooklyn, New York.
The vacancy announcement for this particular position should be posted
on or about the first week of July 2000;
Pursuant to this grant of priority consideration, the Complainant is
required to apply for the position of Manager of Distribution Operations,
EAS Level 22 or above, through the regular and customary procedures
necessary in applying for posted Postal Services positions. Once the
Complainant has timely submitted the appropriate documentation necessary
in applying for the position of Manager of Distribution Operations, EAS
Level 22 or above, the Complainant is guaranteed an interview pursuant
to the aforementioned �priority consideration.�
The parties to this Agreement understand that the settlement of this
matter is contingent upon the selection of the Complainant for the
position of Manager of Distribution Operations, EAS Level 22 or above.
In the event that the Complainant is not selected for the Manager
of Distribution Operations position, EAS Level 22 or above, this
above-captioned matter will proceed forward to an EEOC hearing.
The record reveals that on August 16, 2000, the agency interviewed
complainant for the position of Manager of Distribution Operations.
The record further reveals that on September 1, 2000, the agency notified
complainant that he was not selected for the position.
In an electronic message to an agency attorney dated September 12,
2000, complainant alleged that he was recently informed that he was
not selected for the Manager of Distribution Operations position.
In that correspondence, complainant stated that he had requested that
his underlying EEO complaint be reinstated to an EEOC Administrative
Judge (AJ). The record contains a letter from complainant dated
October 21, 2000 to an AJ wherein he requested that his underlying
complaint be reinstated in accordance with the terms of the settlement
agreement. Finally, the record contains a letter from complainant to an
agency attorney dated November 28, 2000, wherein complainant requests
that his underlying EEO complaint be reinstated because he was not
selected for the Manager of Distribution Operations position.
On May 21, 2001, complainant appealed the matter to the Commission.
On appeal, complainant alleges that the agency breached the settlement
agreement by refusing to reinstate his underlying complaint after it
failed to select him for the Manager of Distribution Operations position.
The agency did not issue a final decision on complainant's breach claim.
However, on appeal, the agency contends that complainant failed to notify
the EEO Director in writing of the alleged breach of the settlement
agreement and claim breach within thirty days after he was informed that
he was not selected for the position on September 1, 2000, as required
by EEO Regulations.
Untimely Breach Claim
EEOC Regulation 29 C.F.R. 1614.504(a) requires that if a complainant
believes that the agency has failed to comply with the terms of a
settlement agreement, the complainant shall notify the EEO Director in
writing of the alleged noncompliance within thirty days of the alleged
noncompliance.
The agency contends that complainant should have alleged breach of
the settlement agreement within thirty days of the date he learned
of his non-selection. Complainant, however, is not alleging that
the agency breached the agreement by failing to select him for the
Manager of Distribution Operations position. Instead, complainant is
alleging that the agency's refusal to reinstate his EEO complaint after
his non-selection breached provision 6 of the agreement. The record
reveals that complainant requested that the agency reinstate his EEO
complaint to the agency and an AJ on September 12, 2000, October 21, 2000,
and November 28, 2000. There is no indication in the record that the
agency responded to any of complainant's requests for reinstatement. In
his letter to the agency dated November 28, 2000, complainant stated
that he would seek enforcement of the agreement if the agency did not
respond to his request. On appeal, complainant states that �months have
gone by and this has not been done.� In light of these circumstances,
the Commission determines that complainant timely alleged settlement
breach, and we will now address the merits of complainant's breach claim.
Provision 6
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 provision 6, the agency promised to reinstate complainant's EEO
complaint for a hearing if it did not select him for the Manager of
Distribution Operations position. The record reveals that complainant
was not selected for the Manager of Distribution Operations position. We
therefore find that the agency's failure to reinstate complainant's EEO
complaint for a hearing breached the terms of the agreement.
Accordingly, the Commission REMANDS this matter to the agency for
reinstatement of complainant's underlying complaint for a hearing and
further processing consistent with the ORDER set forth herein.
ORDER
The agency shall submit to the Hearings Unit of the EEOC New York District
Office a request for a hearing for the complaint that was the subject of
the instant settlement agreement within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit
a copy of the complaint file to the EEOC Hearings Unit within fifteen
(15) calendar days of the date this decision becomes final. The agency
shall provide written notification to the Compliance Officer at the
address set forth below that the request and complaint file have been
transmitted to the Hearings Unit.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
Augustt 29, 2002
__________________
Date