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