0120092914
11-18-2009
Daniel J. Lopez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Daniel J. Lopez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120092914
Agency No. 4G780011508
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated May 26, 2009, finding that it was
in compliance with the terms of the April 3, 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.
The settlement agreement provided, in pertinent part, that:
(1) Management will work [complainant] in accordance with Article
13.
(2) [Complainant] will work only within his doctor's restrictions
and perform duties subject to the needs of the Service.
(3) [Complainant] will be allowed to use LWOP in lieu of SL (sick
leave) beginning March 29, 2008.
(4) [Complainant's] pre-approved choice annual leave for 2008 will
be honored regardless of AL balance by using AL and LWOP in lieu of AL
if necessary.
By letter to the agency dated August 18, 2008, complainant alleged that
management was in breach of the settlement agreement, and requested that
the agency implement its terms. Essentially, complainant asserted that
management was not allowing him to perform work which is available and
within his medical restrictions, resulting in a reduction in hours of
available work provided him in violation of the settlement agreement.
In support of his claim, complainant alleged that on a number of days
in August 2008, management sent him home even though there was work he
could perform. He indicated that there were other employees who had to
complete his work on overtime. Complainant believed that he was being
denied work in violation of the settlement agreement.
In its May 26, 2009 FAD, the agency concluded that the agency was
not in violation of the settlement agreement because it was providing
complainant with work within his restrictions based on the needs of the
Service as agreed to in the April 3, 2008 settlement agreement. The FAD
noted that the Postmaster asked management to conduct a daily review
to locate productive hours of work for complainant. According to the
Postmaster, all hours needed to be productive because complainant is
an unassigned employee on light duty. The Postmaster stated that this
is unlike the situation with a "limited" duty employee, recovering from
a work-related injury, who was guaranteed eight hours of work per day.
While the Postmaster indicated that complainant and the union identified
various additional duties that complainant believed he could perform,
some of the duties were already assigned to other employees.
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 O 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).
As already noted, complainant is alleging that the agency has violated the
terms of the settlement agreement by providing him with less than eight
hours of work per day. However, the plain language of the agreement does
not provide a guarantee of a certain number of hours of work per day.
Rather, it simply provides that complainant will be provided with work
within his medical restrictions subject to the needs of the Service.
Complainant has not established that management was acting in bad faith in
assigned him work. Time records, for example, indicate that complainant
was averaging more hours of work per week following the execution of
the agreement than he was getting prior to settling. The record also
indicates that complainant entered into a related settlement agreement on
July 16, 2008, resolving a union grievance brought under the collective
bargaining agreement. It appears that the grievance settlement may impose
greater responsibilities on management to search for available work for
complainant than the EEO settlement agreement. However, this Commission
does not have jurisdiction to enforce the grievance settlement and
complainant will have to pursue any claim of breach of that agreement in
the grievance forum. Finally, to the extent that complainant may be also
alleging that management is committing subsequent acts of discrimination
or retaliation, he should seek EEO counseling so those claims may be
processed as separate complaints under 29 C.F.R. � 1614.106.
Accordingly, for the reasons stated herein, the Commission AFFIRMS the
agency's final decision finding no breach of the April 3, 2005 settlement
agreement.
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 (S0408)
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 (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
November 18, 2009
__________________
Date
2
0120092914
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120092914