Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Mar 7, 2014

0120131655 (E.E.O.C. Mar. 7, 2014)

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

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 0120131655

Agency No. 1J-626-0015-08

DECISION
Complainant filed a timely appeal with this Commission requesting a determination as to
whether the agency breached the September 16, 2010 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.

BACKGROUND
On April 12, 2012, Complainant was issued a Notice of Removal for Failure to Maintain a
Regular Work Schedule. The progressive discipline supporting the Notice included an April
25, 2011 Letter of Warning; a May 31, 2011 Seven-Day Suspension; and a November 2, 2011
Fourteen-Day Suspension.

Complainant filed a grievance concerning the Notice of Removal. On Complainant’s behalf,
the Union contended that Complainant’s multiple absences were due to his supervisor’s
creation of a hostile work environment. Management found no evidence to support any of the
alleged harassing incidents and reviewed Complainant’s attendance records for each year back
to 2005, to determine if different supervision had had any positive impact on Complainant’s
attendance. Management concluded that different supervision had not had any positive impact
because Complainant had a record of very poor attendance dating back through 2005.

Complainant now claims that the Agency used his prior attendance record to uphold the Notice
of Removal, in violation of a September 16, 2010 settlement agreement that resolved multiple
causes of action, including several EEO complaints.

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ANALYSIS
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 initially note that there is nothing contained within the four corners of
the settlement agreement prohibiting the Agency from using Complainant’s prior poor
attendance record as the basis of future discipline. However, even assuming that there was
such a provision, we find that the only discipline supporting the 2012 Notice of Removal
consisted of the Letter of Warning and the two suspensions Complainant received in 2011.
Thus, we find no breach of the September 16, 2010 agreement. We believe Complainant
misconstrued management’s reasons for examining his attendance records for each year back to
2005. Management did that to determine if there was an arguable basis to mitigate the Notice
of Removal to a lesser penalty, rather than to support it as Complainant contends.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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
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29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614

(EEO MD-110), at 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

(S0610)
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. 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

(Z0610)
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
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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

Date
March 7, 2014