Bruce C. Dein Jr., Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 5, 1999
01981007 (E.E.O.C. Jan. 5, 1999)

01981007

01-05-1999

Bruce C. Dein Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Bruce C. Dein Jr. v. United States Postal Service

01981007

January 5, 1999

Bruce C. Dein Jr., )

Appellant, )

) Appeal No. 01981007

v. ) Agency No. 1B-131-0031-97

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

________________________________)

DECISION

Appellant appeals to the Commission for a determination as to whether

the agency complied with the terms of a settlement agreement which the

parties had entered into. See 29 C.F.R. ��1614.402, .504(b); EEOC Order

No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency breached the settlement

agreement.

BACKGROUND

A review of the record reveals that appellant contacted an EEO Counselor

in May 1997, alleging that he had been discriminated against on the

basis of his age (unspecified), and in reprisal for prior EEO activity

when he was not scheduled for automation training, and was told to

attend training he did not need. Prior to a formal complaint being

filed, appellant and the agency settled the matter on May 30, 1997.

The settlement agreement provided, in pertinent part, that:

During the accounting period following the completion of the

Binghamton Safety Audit [appellant] will be given an overview of the

OCR/DBCS/RBCS/LMLM system by the Automation Supervisor as well as receive

practical experience by working with that Supervisor for a total of 24

hours.

By letter dated October 14, 1997, appellant alleged that the agency had

not complied with the terms of the settlement agreement. Specifically,

appellant stated that he did not receive the agreed upon training.

Appellant noted that he was obligated to spend more time working on the

flat sorter, and that while craft employees attempted to assist him with

automation, the Manager of Plant Maintenance advised him not to ask the

Supervisors any questions.

In its final decision dated October 23, 1997, the agency determined that

it had complied with the terms of the agreement. The agency indicated

that the Manager of Distribution Operations asserted that appellant

was given a booklet on automation and allowed to complete training on

the clock. The agency stated that learning automation was secondary to

appellant's daily assignment.

On appeal, appellant stated that he was given loose papers which

were not numbered or in order, and not a training booklet. Further,

appellant challenged the agency's assertion that he was provided training

by the Automation Supervisor, stating that he received only minimal

assistance from clerks and Acting Supervisors whom he asked for help.

Appellant indicated that he was seeking to have the agreement enforced.

ANALYSIS AND FINDINGS

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.

In addition, it has long been known that a settlement agreement is a

contract between the employee and the agency, to which ordinary rules of

contract construction apply. Roberts v. USPS, EEOC Appeal No. 01842193

(May 8, 1985). The Commission has further held that the face of the

agreement best reflects the understanding of the parties. See Wilson

v. EEOC, EEOC Appeal No. 01881684 (October 13, 1989).

In the case at hand, while the agency stated that appellant was

provided with automation training, it has presented no evidence to

support its assertion. Appellant denied receiving any training from

the Automation Supervisor. Further, although the agency indicated that

the automation training was to be secondary to appellant's assigned

duties, the settlement agreement specifically provided that appellant

would work with the Automation Supervisor for a total of 24 hours.

Accordingly, the Commission finds that the agency breached the May

1997 settlement agreement. The agency's decision finding no breach

of settlement is REVERSED, and the complaint is hereby REMANDED to the

agency for further processing in accordance with this decision and the

applicable Regulations.

ORDER (C1092)

The agency is ORDERED to take the following remedial action:

The agency shall, within thirty (30) calendar days of the date this

decision becomes final, specifically implement the terms of the May 30,

1997 settlement agreement by providing appellant with an overview of the

OCR/DBCS/RBCS/LMLM system and an opportunity to spend 24 hours working

with the Automation Supervisor.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation verifying

that the corrective action has been implemented.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. 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. 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 (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:

JAN 5, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations