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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0120092049
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092049