Richard J. Dunton v. United States Postal Service 05970415 April 8, 1999 Richard J. Dunton, ) Appellant, ) ) v. ) Request No. 05970415 ) Appeal No. 01962093 William J. Henderson, ) Agency No. 1C-441-1102-94 Postmaster General, ) United States Postal Service, ) Agency. ) ) DECISION ON REQUEST FOR RECONSIDERATION INTRODUCTION On January 17, 1997, Richard J. Dunton (appellant) timely initiated a request to the Equal Employment Opportunity Commission (EEOC or Commission) to reconsider the decision in Richard J. Dunton v. United States Postal Service, EEOC Appeal No. 01962093 (December 13, 1996). EEOC regulations provide that the Commissioners may, in their discretion, reconsider any previous Commission decision. 29 C.F.R. §1614.407(a). The party requesting reconsideration must submit written argument or evidence which tends to establish one or more of the following three criteria: new and material evidence is available that was not readily available when the previous decision was issued, 29 C.F.R. §1614.407(c)(1); the previous decision involved an erroneous interpretation of law, regulation, or material fact, or misapplication of established policy, 29 C.F.R. §1614.407(c)(2); or the previous decision is of such exceptional nature as to have substantial precedential implications, 29 C.F.R. §1614.407(c)(3). Appellant's request fails to meet any of the criteria for reconsideration, and so is DENIED. However, the Commission finds it appropriate to reconsider the matter on its own motion. BACKGROUND Appellant entered on duty with the agency on August 21, 1993. On November 5, 1993, appellant's supervisor sent him home on suspicion that appellant was drunk. Appellant has maintained that a new medication he was taking for a service-connected disability had made him ill. Appellant's last day in paid status was November 17, 1993. As a result of a grievance filed in this matter, appellant was re-hired by the agency, subject to a new probationary period and without back pay, effective August 20, 1994. In the mean time, however, on April 21, 1994, appellant had filed an EEO complaint in this matter. Appellant sought, in relevant part, reinstatement with back pay and benefits. Subsequently, the parties entered into a settlement agreement which stated, in its entirety: The complainant's seniority date will be changed to August 21, 1993. This agreement does not convert the complainant to full time. There shall be no reprisal for filing the EEO complaint. On November 7, 1995, appellant informed the agency that he believed it to be in breach of the settlement agreement. Appellant stated that he learned on October 18, 1995, that while his seniority date had been changed to August 21, 1993, his entry on duty date was still listed as August 20, 1994. Appellant stated: The only stipulation agreed upon in [the settlement agreement] was about the original starting date of 21 August 1993. It was never stipulated by [the Senior Labor Relations Specialist] that there was a difference between entering on duty date and seniority date. ...[A]lthough the agreement stipulates seniority date, [the Senior Labor Relations Specialist] verbally assured me that the records would reflect 21 August 1993 as my entered on duty date. ...[I]f not I must pursue this process from the point it ceased. On November 27, 1995, the agency issued a final decision finding that it was not in breach of the settlement agreement. The agency noted that the Senior Labor Relations Specialist denied that there was any agreement to change appellant's entry on duty date, and that the seniority date is used primarily for bidding purposes and could be different from the entry on duty date. The previous decision affirmed, finding that interpretation of the settlement agreement was controlled by the language of the settlement agreement, and not by any alleged verbal assurances. ANALYSIS and FINDINGS The Commission's regulations provide that any settlement agreement knowingly and voluntarily agreed to by the parties shall be binding on both parties. 29 C.F.R. §1614.504(a). The regulations further provide that if the complainant believes that the agency has failed to comply with the terms of a settlement agreement, the complainant shall notify the Director of Equal Employment of the alleged non-compliance with the settlement agreement. Id. The complainant may request that the terms of the settlement agreement be specifically implemented or request that the complaint be reinstated for further processing from the point at which processing ceased under the terms of the settlement agreement. Id. A settlement agreement is a contract between the complainant (appellant herein) and the agency, and it is the intent of the parties as expressed in the contract, not some unexpressed intention, which 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 generally has relied on the "plain meaning" rule. See Hyon O v. U.S. Postal Service, EEOC Request No. 05910787 (December 2, 1991). This rule states that if a writing appears to be plain and unambiguous on its face, its meaning must be determined within the confines of the document itself, without resort to extrinsic evidence of any kind. See Montgomery Elevator Co. v. Building Engineering Services Co., 730 F.2d 377 (5th Cir. 1984). The Commission has previously visited the question of what is meant by the term "seniority date." In Barbour v. U.S. Postal Service, EEOC Request No. 05921004 (May 20, 1993), the appellant (Barbour) was reinstated under a September 8, 1986, settlement agreement which provided, in relevant part, that she would be reinstated subject to a new probationary and training; that following successful completion of probation and training, she would receive a seniority date of October 27, 1984<1>; and that she would be re-credited with annual leave and sick leave for the period October 27, 1984, through January 17, 1985.<2> Subsequently, Barbour alleged breach of settlement when the agency, on January 17, 1992, adjusted her entry on duty date to October 11, 1986; her leave computation and retirement computation dates to July 19, 1986; and changed her leave accrual category. In finding that the agency had breached the settlement agreement, the Commission stated: The concept of seniority generally encompasses both the allocation of benefits among competing employees (competitive seniority) and noncompetitive benefits earned under the employment agreement (benefits seniority). See Franks v. Bowman Transportation Co., Inc., 424 U.S. 747, 767 (1976), citing S. Slichter, J. Healy, & E. Livernash, The Impact of Collective Bargaining on Management, 104-115 (1960). The settlement agreement in the present case contains no language which in any way limits or qualifies the definition of seniority. Therefore, the Commission finds that it is reasonable to interpret the term "seniority," without such qualifying language, as encompassing seniority for all purposes, including competitive status seniority and benefits seniority. See Jerome Griffin v. U.S. Postal Service, EEOC Request No. 05920009 (April 28, 1992); Joanne Villanueva v. U.S. Postal Service, EEOC Request No. 05920223 (May 14, 1992). Barbour, EEOC Request No. 05921004. The facts of the instant case, however, are distinguishable from those in Barbour. In Barbour, the appellant was reinstated pursuant to a settlement agreement that provided for adjustment of her seniority date and addressed re-crediting of leave. The agency waited nearly six years to change appellant's entry on duty date, leave and retirement computation dates, and leave category to dates inconsistent with Barbour's seniority date. The Commission's view of how the term "seniority date" was to be construed therefore was supported by the agency's actions during a nearly six year period following the execution of the settlement agreement. In the instant case, by contrast, when the parties executed the settlement agreement, appellant had already been reinstated pursuant to a grievance settlement which did not address adjustment of any of the dates discussed above. Upon execution of the settlement agreement, the agency adjusted appellant's "seniority date" as it asserted the term is used in the agency: the date affecting appellant's bidding rights and other job assignment issues. The agency engaged in no action or inaction which would support the construction of "seniority date" as referring to any date but the one changed by the agency. Further, unlike the case in Barbour, it is clear from appellant's notice of breach that appellant was aware at the time he entered into the settlement agreement that "seniority date" and entry on duty date" were two different terms; otherwise, there would have been no reason for him to question the Senior Labor Relations Specialist as to the terms of the agreement. If appellant was in any doubt as to what the written terms of the agreement meant, he should have clarified the terms of the agreement in writing before signing it.<3> With regard to appellant's allegation that the Senior Labor Relations Specialist told him that his entry on duty date would also be changed, the Commission notes that the Specialist denied making such a statement. In any event, such a verbal representation would be given no effect in the interpretation of the settlement agreement. See Eggleston, EEOC Request No. 05900795. Based upon the foregoing, the Commission finds that the agency did not breach the settlement agreement when it did not adjust appellant's entry on duty date as well as his seniority date. Upon review of appellant's request for reconsideration, the previous decision, and the entire record, the Commission finds that appellant's request does not meet any of the criteria of 29 C.F.R. §1614.407(c). Accordingly, appellant's request for reconsideration is DENIED. Having reconsidered the matter on its own motion, the decision in Appeal No. 01962093 is AFFIRMED. There is no further right of administrative appeal from the decision of the Commission on this request for reconsideration. RIGHT TO FILE A CIVIL ACTION (P0993) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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. RIGHT TO REQUEST COUNSEL (Z1092) 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: April 8, 1999 Date Frances M. Hart Executive Officer Executive Secretariat 1 Although not specified, it appears that October 27, 1984 was the date Barbour originally entered on duty with the agency. 2 Given that Barbour alleged discrimination based on pregnancy, it is likely the leave calculation took into account her confinement. 3 Given the Commission's decision in Barbour, however, the agency would be well-advised to ensure the clarity of terms in its settlement agreements.