0120141571
07-08-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120141571
Agency No. 4F-913-0003-14
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated February 26, 2014, finding that it was in compliance with the terms of a November 7, 2013 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On November 7, 2013, Complainant and the Agency entered into a settlement agreement to resolve a matter that was pursued through the EEO complaint process. The settlement agreement provided, in pertinent part, that:
1. [Complainant] will work 7:00 to 3:30 with 1/2-hour lunch. NS (non-scheduled days off) stay the same. [Officer-in-Charge] will write a letter putting that in writing.
2. [Officer-in-Charge] will make a route sheet and get [Complainant's] input or his representative [named representative] input on it for both custodial shifts.
3. On the day where there are 2 custodians, the PSE will cover the closing shift.1
4. The above agreement pertains to while [Officer-in-Charge] is the OIC.
By letters to the Agency dated December 6, 2013 and January 6, 2014, Complainant alleged breach of provisions 1 - 3. Specifically, Complainant alleged that he did not receive a written bid letter stating his new schedule and the route sheets have not been created for the custodians. Further, in his January 6, 2014 letter, Complainant alleged that on December 17, 2013, he entered into a second agreement with a named management official that he wished to appeal. Specifically, Complainant stated that he was supposed to receive a bid preferred assignment sheet stating his position of duty, work schedule and hours and was to be placed with his Human Resources records. Complainant stated that the work schedule the management official made was for him and a named female employee but did not include a named male employee who was hired to work from 4:00 pm to 6:00 pm on Wednesdays. Furthermore, Complainant stated that his work schedule had specific work times and areas he was to be assigned to while the named female employee's schedule did not.
In its February 26, 2014 final decision, the Agency found no breach of the November 7, 2013 settlement agreement. The Agency stated that it conducted an inquiry into Complainant's allegations. The Agency stated that in regard to provision 1, the Officer-in-Charge (OIC) stated that Complainant had been working the 7:00 am to 3:30 pm shift with 1/2 hour following the signing of the instant agreement. The OIC stated that on December 17, 2013, she attempted to give Complainant the original letter with the agreed upon work hours and the route sheets, but that Complainant refused to accept them.
The OIC stated that contrary to Complainant's above assertion, there was no second settlement agreement entered into on December 17, 2013, to create a bid preferred assignment sheet. Furthermore, the Agency noted that Complainant did not provide a copy of the alleged December 17, 2013 agreement.
The Agency noted in regard to provision 2, the OIC stated that she created the route sheets for two custodial positions with the union steward as agreed. The OIC further stated that she attempted to give Complainant a copy on December 17, 2013 but he refused to accept the letter with the agreed upon hours so she had to mail them to Complainant's mailing address. The OIC stated that there were no times on the named female custodian's route sheet because the female custodian and a named male custodian work off the same sheet at different times of the day which was the reason why there was no specific route sheet for the named female custodian.
Regarding provision 3, the OIC stated that she had borrowed a named female custodian from the Agency's Sylmar Post Office to work until closing, at 6:00 pm every Wednesday from the week after the signing of the instant settlement agreement to the present. The OIC stated that after the named female custodian left her facility, she had to borrow another named female custodian from a neighboring station to work on Wednesdays.
The record contains a copy of the OIC's affidavit. Therein, the OIC stated that in regard to provision 2, she created the route sheets for the two custodial positions with the union steward "as agreed and attempted to give [Complainant] a copy on December 17, 2013. [Complainant] refused to accept the letter with the agreed upon work hours (7:00-3:30) and the route sheets from me so I mailed them to his address, the documents were delivered on December 18, 2013. A copy of the information and proof of delivery is attached."
Regarding provisions 1 and 3, the OIC stated "I have borrowed [female custodian] from the Sylmar Post Office to work until close at 6:00 pm every Wednesday from the week after entering the November 07, 2013 settlement agreement to present."
Further, the OIC stated that after the female custodian from the Sylmar Post Office left her facility, she borrowed another female custodian "from a neighboring station to work on Wednesdays. Because [the new female custodian] cannot work past 4:00 pm, I resorted to borrowing an additional custodian [female custodian] from the Sylmar Post Office to work from 4:00 pm to 6:00 pm on Wednesdays to meet the terms of this agreement." I have since realized that I don't need this much custodial coverage on Wednesdays. I am required to have the building cleaned within the hours I am allotted not to work the custodians during any specific hours. I may deem it unnecessary to have a custodian work until 6:00 pm on Wednesdays but I will continue in the foreseeable future to have the second custodian end tour later than [Complainant] and [Complainant] will remain the early custodian with the 7:00 am to 3:30 schedule as agreed.'
With respect to Complainant's allegation that there was a second settlement agreement that the parties entered on December 27, 2013, the OIC denied it. Specifically, the OIC stated "I did not enter into a second settlement agreement with [Complainant] on 12/17/13. I am not aware of any agreement to create a bid preferred assignment sheet for [Complainant]. There are no set times on [new female custodian's] route sheets because both she and [female Sylmar Post Office custodian] work off the same sheet at different times of the day and [female Sylmar Post Office custodian] only works 2 hours a week at Tarzana."
Complainant, on appeal, argues that the Agency erred finding no breach of the November 7, 2013 settlement agreement. For instance, Complainant states that he accepted a new schedule from the OIC and a named management official "but I had no input into the scheduling with regards to what needed to be cleaned so that two custodians should not be overlapping assignments because there are different cleaning duties at different times...it is not necessary to have two custodians overlapping on the same job when other areas need to be done such as the work floor, front lobby, kitchens and dock area."
Further, Complainant states that the named female custodian was not covering the closing shift because she is scheduled to work 3:00 pm - 6:00 pm. As a closing custodian, the shift for closing requires you to bet here until 6:30 pm so that the front clerk lobby can be cleaned which is not being done currently."
The instant appeal followed.
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).
Provision 1 provides for the Agency to allow Complainant work 7:00 am to 3:30 pm with 1/2 hour lunch break and that his non-scheduled days off remain the same, and the OIC would write a letter putting the agreed terms in writing. We note that according to the OIC, Complainant worked 7:00 am to 3:30 pm with an 1/2 hour lunch break and his non-scheduled days remain the same following the signing of the agreement. We note that Complainant, on appeal, does not dispute the OIC's assertions that it was in compliance of provision 1.
Complainant alleged that the intent of the parties was that he would receive a bid preferred assignment sheet stating his position of duty, work schedule and hours and was to be placed in his Human Resources records. However, provision 1 does not specify that Complainant would receive a bid preferred assignment sheet stating his position of duty, work schedule and hours or that such a sheet was to be placed in his Human Resources records. If Complainant had wanted a detailed bid preferred assignment sheet and the sheet placed in his Human Resources records, he should have included it as part of the subject settlement agreement. See Jenkins-Nye v. General Services Administration, EEOC Appeal No. 01851903 (March 4, 1987).
Provision 2 provides that the OIC would make a route sheet and get Complainant's or his representative's participation on it for both custodial shifts. We note that the OIC asserted that she created the route sheets for the two custodial positions with the union steward and attempted to give Complainant a copy of it.
The Commission has held that pursuant to 29 C.F.R. � 1614.504(b), an Agency has 35 days from the receipt of a Complainant's allegation of noncompliance to resolve the matter, or cure any breach, that occurred. The Commission has held that if an Agency cures a breach during the 35 day period after filing a breach claim, it will be deemed in compliance. Eckholm v. Department of Veterans Affairs, EEOC Appeal No. 0120091193 (April 29, 2009). On December 6, 2013 and January 6, 2014, Complainant notified the Agency breached provisions 1 - 3. The record reflects that the Agency was in compliance of provisions 1 and 2. We find that to the extent that the Agency breached provision 3, any such breach has been cured. Based on the above, we AFFIRM the Agency's finding of no breach of provisions 1 - 3 of the November 7, 2013 settlement agreement.
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 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 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
July 8, 2014
__________________
Date
1 The term "PSE" is not expressly identified in provision 2. However, a fair reading of the record reflects that it is an abbreviation for "Postal Support Employee."
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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