01A23122_r
10-09-2002
Daniel Graham, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Daniel Graham v. United States Postal Service
01A23122
October 9, 2002
.
Daniel Graham,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23122
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated May 1, 2002, finding that it was
in compliance with the terms of a June 9, 1989 and an April 2, 1991
settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);
and 29 C.F.R. � 1614.405.
The June 9, 1989 settlement agreement provided, in pertinent part that :
Management and the complainant agree to address each other in a
professional and business like manner. Management agrees to give all
discussions in private as per the National Agreement.
The April 2, 1991 settlement agreement provided, in pertinent part that:
1. Management agrees that the T-6 assigned to the complainant's route
will begin tour at the designated hour which the complainant's route
dictates and will no longer begin earlier.
2. Management further agrees the Reserve Letter Carrier will begin tour
at 07:50 when she opts to carry the complainant's route and maintain
her own 0500 schedule when she is assigned by management to carry the
complainant's route.
By letter dated February 15, 2002, complainant alleged breach of the
June 9, 1989 and April 2, 1991 settlement agreements. Specifically,
complainant alleged that on January 18, 2002, he received a suspension
out on the street in the presence of a customer, in breach of the June
9, 1989 settlement agreement. Complainant also alleged that while on
vacation from January 18, 2002 until January 28, 2002, his replacement
reported earlier than his starting time which is a breach of the April 2,
1991 settlement agreement. In addition, complainant alleged that he was
subjected to harassment when he was issued three letters of suspension.
In its May 1, 2002 final decision, the agency found no breach.
Specifically, the agency stated that it was Supervisor Customer Services's
determination to issue complainant his suspension while he was on his
route because it was complainant's last day prior to his annual leave.
The Supervisor stated that while there were other cars parked in front of
and behind complainant's vehicle, there were no other persons anywhere
in sight when he issued the suspension to complainant. The Supervisor
further stated that while complainant was reading his suspension,
a customer approached them and that nothing was said during the brief
encounter.
The agency stated that it was Supervisor's determination that during
complainant's vacation period, which was a holiday week, an employee
from the overtime desired list, who chose complainant's route, effective
January 22, 2002, was scheduled to report earlier than the normal start
time due to the holiday and heavy mail volume. The Supervisor stated that
overtime can be assigned prior to the normal begin of the tour and/or at
the end of a tour. The Supervisor further stated that there is a policy
to have the carriers back by 5 pm; and the use of the carrier who opted
to work complainant's route on a schedule earlier than complainant's
report time was contractually correct.
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 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).
With respect to complainant's letter of suspension, a review of the
record persuades the Commission that the agency did not breach the
settlement agreement dated June 9, 1989. The Commission notes in
Supervisor's letter dated March 28, 2002, the Supervisor stated that
he knew how complainant felt about privacy issues; that he assessed the
surroundings; and that he determined that there was sufficient privacy
to issue complainant the letter of suspension. The Supervisor further
stated that while complainant was reading the letter of suspension,
a customer approached complainant's vehicle and that nothing was said
between complainant and him.
Regarding complainant's claim that the replacement began earlier than
his starting time, we find that the agency did not breach the April 2,
1991 settlement agreement. We note that the April 2, 1991 settlement
agreement provided that the T-6 assigned to complainant's route would
begin tour at the designated hour that the route dictates. The record
reflects that the agency determined that the T-6 should work overtime
prior to the normal starting time of the tour due to the holiday and
heavy mail volume. The record contains evidence supporting an agency
determination that the employee's change in starting time was attributable
to the needs of the service. Furthermore, the record contains no evidence
of bad faith by the agency in making this change.
Complainant, moreover, contends that the agency engaged in discriminatory
harassment when he was issued three letters of suspension. Pursuant to 29
C.F.R. � 1614.504(c), allegations that subsequent acts of discrimination
violate a settlement agreement shall be processed as a separate complaint
under 29 C.F.R. � 1614.106. Therefore, if complainant wishes to pursue
these separate claims through the EEO process, he is advised to initiate
contact with an EEO Counselor thereon.
Accordingly, the agency's finding of no breach is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
October 9, 2002
__________________
Date