0120093139
12-15-2009
David A. McSulla, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Headquarters) Agency.
David A. McSulla,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Headquarters)
Agency.
Appeal No. 0120093139
Agency No. 1Y520002809
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) by the agency dated May 26, 2009, finding that
it was in compliance with the terms of the March 18, 2009 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. Following is a clarification of the labor management chain in securing
information. David McSulla is the Chief Steward. In this position he
will first request information from his supervisor, currently J.H. or
in his absence P.C. or whoever is [the] supervisor in charge;
2. If the supervisor does not respond in a reasonable time, 7 days,
David McSulla will go to the next step - requesting the information from
maintenance manager G.L. or manager [two illegible words];
3. If Mr. G.L. does not respond, Mr. McSulla will refer the request up
the management chain;
4. Currently there are 19 official requests for information/documents
relative to processing a grievance that need attention. Mr. McSulla
will resubmit these 19 to supervisor J.H., hand delivered;
5. Mr. McSulla will expect a response in seven days. There may be a
request for reasonable extra time to respond to the 19; and
6. The 19 issues needing information will not be considered untimely
if a grievance is generated. This is by mutual agreement of union and
management.1
By letter to the agency dated April 13, 2009, complainant alleged it
breached the settlement agreement. Specifically, he alleged that he did
not receive any of the documents he requested. Thereafter, on May 3,
2009, complainant wrote supervisor J.H. that he made a request under
term 1 of the settlement agreement on March 26, 2009, he received only
about a fifth of what he requested on April 20, 2009, and he got nothing
further.
Thereafter, the agency gathered papers in an attempt to show it complied
with the settlement agreement. One was a memo stating J.H. will require
additional time to obtain requested documents, which was signed by
J.H. and complainant on April 20, 2009; the other was a memo dated May
13, 2009, signed by J.H. and complainant stating another package was
prepared for complainant by J.H., but some documents were unavailable.
The agency also supplemented the record with statements from supervisor
J.H. and manager G.L.
J.H. stated that he had the first package of documents ready on April
6, 2009, but there was an emergency that day so he missed complainant,
and on April 13, 2009, which was the next time he saw complainant, he
refused to accept them, saying he was waiting for direction from the
union on whether to do so. Complainant accepted the first package on
April 20, 2009. J.H. stated that the remaining documents were given
to complainant on May 13, 2009, except ones that were unavailable.
J.H. stated that he was delayed because of demands he identified that
leave him little time to collect data. He also stated complainant
granted verbal extensions, and he felt they had a mutual agreement.
Manager G.L. stated that he contacted complainant a couple times to see if
there were any issues with his supervisor J.H., and complainant just said
they were talking. He stated that he called complainant and J.H. into
his office on April 23, 2009, to see if there were any outstanding issues,
and complainant refused to talk, citing a filing with the National Labor
Relations Board (NLRB). G.L. stated that he told complainant that the
settlement agreement required him to request a meeting with him if he
felt any issue was not being resolved with J.H., and complainant never
asked for one. G.L concluded that he has never been against providing
information, but there is a process for doing so which complainant does
not follow.
In its FAD, the agency found that it satisfied the terms of the settlement
agreement. It found that when management indicated extensions were
needed and requested, complainant agreed them.
On appeal, complainant contends that the agency failed to provide legible
copies of the documentation he requested, and that he filed a case with
the NLRB.
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 an initial matter, the record does not indicate whether complainant
filing a case with the NLRB implicates term 6 of the settlement agreement,
and the agency does not contend that it does. Accordingly, we find that
the NLRB filing did not obviate the need for the agency to comply with
the settlement agreement.
Complainant contends that the agency violated the settlement agreement
by unduly delaying in providing the requested documentation, and
giving incomplete and/or illegible documentation. Terms 2 and 3 of the
settlement agreement provide that if complainant was dissatisfied with
supervisor J.H.'s response to his information request, he was to elevate
the request. Complainant does not dispute the agency's contention that he
did not elevate the request to manager G.L., nor does he contend nor the
record show that he elevated his dissatisfaction with any other manager.
Given this, we find that the agency is in compliance with the settlement
agreement.
The FAD is affirmed.
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
December 15, 2009
__________________
Date
1 The settlement agreement did not number the terms. We did so here
for easy reference.
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0120093139
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093139