0120093191
11-13-2009
Casmear P. Larrieu, III, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Casmear P. Larrieu, III,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120093191
Agency No. 1H-391-0006-06
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated June 29, 2009, finding that it was in
compliance with the terms of a February 23, 2006 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The February 23, 2006 settlement agreement provided, in pertinent part,
that:
Management agrees to afford [complainant] off day, holiday work, begin
tour and after tour overtime opportunities as long as the duties to be
performed are within [complainant's] limitations.
By "Information for Pre-Complaint Counseling," PS Form 2564-A dated May
26, 2009, complainant alleged breach of the agreement. Specifically,
complainant alleged that the agency failed to comply with the agreement
"by not affording me overtime opportunities. Management has consistently
bypassed me in favor of junior employees, keeping Tour II employees 4
hours end tour and bringing Tour 1 employees two to four hours early
on my off day." Complainant further alleged that he was informed that
management was made aware that he was being bypassed and the answer
given by management was "tell him [complainant] to file a grievance."
In its June 29, 2009 final decision, the agency found no breach. In its
decision, the agency represented that the Supervisor, Distribution
Operations (SDO) was contacted and stated that she does not make the
determination to keep a tour late or bring another one in early. The
decision further indicated that SDO stated that the overtime that was
given to an employee in the 2C room, identified by complainant, was for
work outside of complainant's medical limitations. According to the
agency, SDO stated that due to the changes in the 2C room, complainant
would not be able to perform the work. Specifically, SDO is represented
to have stated that complainant's restrictions involve pushing, pulling
and standing which prevents him from working in the 2C room.
The agency's decision further noted that a Manager, Distribution
Operations (MDO) stated that everything is being done to cut costs
due to decline in mail volume. According to the agency decision, MDO
stated that if the work can be done in six hours as opposed to eight
hours of guaranteed overtime, then it only makes good business sense to
use the six. MDO purportedly also stated that complainant can and has
been utilized when the overtime would not violate his limitations.
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 O 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 the instant case, the Commission determines that the record in
this case contains insufficient evidence for us to determine whether
a breach of the instant agreement has occurred. We note, for example,
that the agency's final decision finding no breach is predicated upon
statements by the management officials. However, the record contains
no affidavits from management officials indicating that they fulfilled
the obligations under the terms of the settlement agreement. Given this
lack of evidence, we are unable to ascertain whether the agency complied
with the settlement agreement.
Accordingly, the agency's finding of no breach of the settlement agreement
is VACATED. The matter is REMANDED to the agency for further processing
in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
The agency shall supplement the record with evidence clearly showing
that it has complied with the settlement agreement. The supplementation
of the record shall include documentation, such as affidavits from
management officials and the Commander, indicating that the agency
was in compliance with the settlement agreement. Within thirty (30)
calendar days of the date this decision becomes final, the agency shall
issue a new decision concerning whether it breached the February 23,
2006 settlement agreement.
A copy of the agency's new decision must be sent to the Compliance
Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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
November 13, 2009
__________________
Date
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0120093191
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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