01A30271_r
03-24-2003
David Loewenstein, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
David Loewenstein v. United States Postal Service
01A30271
March 24, 2003
.
David Loewenstein,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30271
Agency No. 4A-117-0035-02
DECISION
Complainant filed an appeal with this Commission alleging that the agency
breached the terms of the February 22, 2002 settlement agreement into
which the parties entered.
The settlement agreement provided, in pertinent part, that:
The 1/17/02 7 day suspension will be rescinded and expunged.
A labor-management meeting will occur at least [once] a month.
. . . .
[Person A, complainant, and Supervisor B] will sit down and discuss
labor relations and the collective bargaining process and procedure.
By letter to the agency dated August 18, 2002, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
his complaint be reinstated for processing. Specifically, complainant
alleged that the agency failed to hold the required labor-management
meetings. Complainant contends that repeated requests to meet have
been ignored.
When the agency did not respond to his allegation of breach, complainant
filed the present appeal. On appeal, complainant denies that he expressed
displeasure with the agreement or reluctance to meet. Complainant
explains that he did meet with Person A and Supervisor B while Person A
read the National Agreement, but he states that they did not discuss labor
relations as specified in the agreement. Complainant states that Person A
attempted a labor-management meeting only once on March 21, 2002; however,
the meeting never took place. Complainant directly disputes the agency's
claim that he refused to participate in labor-management meetings.
The agency subsequently issued a November 5, 2002 decision, finding that
it did not breach the February 22, 2002 settlement agreement. The agency
claimed that Person A made numerous attempts to meet with complainant
regarding the labor-management meetings, but complainant stated he was
leaving early or did not see the point in meeting. The agency stated that
as a result, daily informal discussions have been held between complainant
and Person A. In addition, the agency stated that any time Person A has
been asked to meet or speak with complainant regarding labor-management
issues, permission has been granted. Further, the agency noted that
complainant expressed his displeasure with the agreement to Person A on
more than one occasion and has been reluctant to follow through with
stipulations in the agreement. Specifically, the agency claimed that
on February 26 and February 27, 2002, complainant told Person A that he
never wanted the settlement and stated that they did not have to meet.
The agency also states that complainant indicated a reluctance to meet
with Supervisor B and stated, �[Supervisor B] is not going to change,
what's the point.�
The record contains a signed statement from Person A detailing three
conversations he had with complainant in February 2002. Person A states
that on February 25 and February 26, 2002, complainant stated that agency
management has made his life miserable and that he �never wanted the
settlement of 2/22.� Person A also states that on February 27, 2002,
complainant stated that he is not happy with the settlement and �[w]e
don't have to meet.�
The record contains a Routing Slip sent from Person A to complainant and
the Chief Shop Steward dated March 21, 2002, stating that per the February
22, 2002 settlement agreement, he would like to meet with complainant for
the purpose of the �first Labor Management meeting under this agreement.�
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).
In the present case, we find that the agency has failed to show
that it complied with the terms of the February 22, 2002 agreement.
The agreement provided that labor-management meetings will occur at
least once a month. Although the agency argues that complainant has been
reluctant to follow through with the requisite meetings, we note that
complainant directly disputes this contention on appeal. With regard to
the agency's assertion that on February 27, 2002, complainant stated that
the agency was not required to meet, we note that there is nothing in
writing indicating that complainant absolved the agency from fulfilling
this term of the agreement. Further, we note that the March 21,
2002 Routing Slip from Person A attempting to arrange the first Labor
Management meeting under the agreement contradicts the agency's claim
that it believed it was absolved from having the specified meetings.
Thus, we find that the agency has not provided persuasive evidence to
show that the required meetings occurred or that they were scheduled to
occur but complainant failed to attend. We note that although complainant
requested reinstatement of his complaint, in the present case, based on
the other consideration provided for in the agreement, we find the more
appropriate remedy is specific enforcement of provision (2).
Accordingly, the agency's decision finding that it complied with the
settlement agreement is REVERSED and the matter is REMANDED for further
processing in accordance with the Order below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency is Ordered to implement provision (2) of the settlement
agreement by having the required labor-management meetings, at least
once a month. The agency shall notify complainant that provision (2)
is being implemented. A copy of the agency's notice to complainant must
be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
March 24, 2003
__________________
Date