Christopher G. Burwell, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.

Equal Employment Opportunity CommissionJun 17, 2010
0120092049 (E.E.O.C. Jun. 17, 2010)

0120092049

06-17-2010

Christopher G. Burwell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.


Christopher G. Burwell,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Pacific Area),

Agency.

Appeal No. 0120092049

Agency No. 1F-951-0027-08

DECISION

Complainant filed a timely appeal with this Commission from the Agency's

determination (AD), dated March 19, 2009, that it was in compliance with

the terms of the September 5, 2008 settlement agreement into which the

parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);

and 29 C.F.R. � 1614.405. For the following reasons, the Commission

MODIFIES the AD.

BACKGROUND

The settlement agreement provided, in pertinent part, that, "[i]n

consideration for 204B/Acting Supervisor for [complainant] his work

record/attendance will be considered from the date of this agreement

forward." In addition, the agreement provided that "EAP [Employee

Assistance Program] would be "available for [complainant].", and that

a particular named Labor Relations Specialist (the LRS) was supposed to

initiate contact with complainant concerning EAP.

By letter to the agency dated February 17, 2009, Complainant alleged that

the Agency was in breach of the settlement agreement, and requested that

the Agency specifically implement its terms. Specifically, Complainant

alleged that the Agency failed to consider him for, or notify him that

he was selected for a 204B position.

In its March 19, 2009 AD, the Agency concluded that management had not

guaranteed in the settlement agreement that Complainant would be used as

an acting supervisor. The AD found that Complainant's manager stated

that, upon review of Complainant's safety record, he had preventable

accidents on December 16, 2008 and February 26, 2009. The manager

also stated that Complainant did not set an example concerning safety

for others. As to attendance, the manager stated that Complainant's

record was unacceptable. The manager stated that for these reasons,

she determined not to use him as a 204B. Thus, the Agency found that

it was in compliance with the terms of the settlement agreement.

CONTENTIONS ON APPEAL

On appeal, Complainant maintains that the Agency has not complied with

the settlement agreement. He additionally asserts that the December 16,

2008, accident was in fact, an aggravation of an injury that pre-dated the

settlement agreement, and that the second incident cited, on February 26,

2009, was still under investigation at the time of the AD. In addition,

Complainant maintains (for the first time) that the agency breached its

second obligation under the settlement agreement, namely, that EAP would

be made available to him, and that a named LRS would initiate contact

with him concerning the program. Complainant contends that the LRS

did not initiate contact with him, and has been unresponsive to voice

messages that he left for her on February 17, 2009 and March 4, 2009.

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.

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. Dep't of Def. 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. Dep't 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. U.S. Postal Serv., 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, we find that the Agency has complied with its

first obligation under the settlement agreement. That is, there is

no evidence that when the Agency considered Complainant for a 204B

position, it factored in his safety or attendance record from before the

settlement agreement was executed. According to Complainant's manager,

she reviewed his safety and attendance record and concluded that he

was not acceptable for a position. The fact that management admits

to considering a December 2008 injury, which Complainant contends was

merely an aggravation of an injury that occurred pre-settlement, does

not render the Agency to be in non-compliance. Moreover, although

complainant maintains that the February 26 incident was still under

review,1 he has presented no persuasive argument as to why this matter

should not have been considered by his manager at that time. Likewise,

Complainant did not refute the manager's assertions that his attendance

was unacceptable, except to state that his "attendance issues" resulted

from his work injury, from poor communication between his supervisor and

himself, and from "procedural errors." We cannot conclude that a breach

of the settlement agreement has occurred simply because Complainant has

provided what he considers to be explanations for his absences.

Next, we address briefly the new allegation of breach raised by

Complainant on appeal concerning EAP. Although Complainant has not

shown that he brought the breach allegation to the attention of the

EEO Director, as is required pursuant to 29 C.F.R. � 1614.504(a),

the Agency nevertheless has responded to the allegation; therefore, in

the interest of administrative economy, we shall address this matter.

The Agency provided an affidavit from the LRS where she stated that after

REDRESS, she "believe[s]" she contacted the EAP Office by telephone,

as she did not know who would be the EAP counselor/representative

for San Jose employees. She further stated that she "believe[s]" she

provided Complainant with the name of an EAP counselor. Based on this

evidence, we are not persuaded that the Agency has complied with its

second obligation under the settlement agreement to make EAP counseling

available to Complainant. We find that the Agency has violated this

provision and direct it to comply with the Order below.

CONCLUSION

After careful consideration of the record, and all arguments set forth

on appeal, the AD is MODIFIED.

ORDER

Within 15 calendar days after this decision becomes final, a Labor

Relations Specialist shall contact Complainant in order to offer him EAP

counseling. If the Labor Relations Specialist does not make contact with

Complainant on the first attempt, s/he shall make three (3) additional

documented attempts to contact Complainant, using alternate methods,

such as in person, telephone, email and/or regular mail.

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 (T0408)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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. If you file

a request to reconsider and also file a civil action, 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

____6/17/10______________

Date

1 There is no more specific information contained in the record concerning

the nature of the February 26 incident.

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2

0120092049

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120092049