Daniel J. Lopez, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.

Equal Employment Opportunity CommissionNov 18, 2009
0120092914 (E.E.O.C. Nov. 18, 2009)

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

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0120092914

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120092914