0120083433
01-27-2009
George R. McEndree, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
George R. McEndree,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083433
Agency No. 4H-335-0115-08
DECISION
Complainant filed an appeal with this Commission from an agency decision,
dated July 8, 2008, finding that it was in compliance with the terms of
the August 9, 2007 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 agrees to accommodate complainant's job duties within
his medical restrictions, to include, casing and carrying his route.
(2) Management agrees to revisit complainant's line of travel and
reconfiguration to be operationally feasible.
(3) Complainant agrees to follow the rules and regulations outlined
in the Postal Handbook and manuals.
By letter to the agency dated January 29, 2008, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged on January 11, 2008, the Station Manager changed his start time
from 7:30 a.m. to 8:15 a.m. and had other carriers case his route.
In its decision, the agency concluded that the agreement was not breached.
According to the agency, the Station Manager determined that it was most
effective to provide complainant with office assistance, rather than
street assistance, based on his observations of complainant and noting the
mail volume when complainant requested assistance to complete his route.
The agency reasoned that complainant's start schedule was changed to
help complainant complete his route within eight hours. Lastly, the
agency noted that complainant was returned to his 7:30 a.m. start time
on March 15, 2008.
On appeal, complainant argues that the subject of the complaint which was
settled as a result of the August 9, 2007 agreement alleged discrimination
with respect to a changed start time (from 7:30 a.m. to 8:30 a.m.) and
having another carrier case the mail on his route.1 Complainant explains
that after the settlement was executed, he was immediately returned
to the earlier start time and when his mail volume increased he was
provided street assistance. On January 11, 2008, complainant argues
that the agreement was breached when his start time was changed again,
from 7:30 a.m. to 8:15 a.m. He acknowledges that in March 2008 he was
returned to the same start time as the other carriers, but contends that
this was the result of the collective bargaining procedure. In support,
he provides a copy of a grievance settlement dated March 19, 2008,
returning him to the 7:30 a.m. start time.
In response, the agency reiterates that on March 15, 2008 complainant
was returned to the 7:30 a.m. start time.
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).
In the instant case, the Commission finds that the settlement agreement
is too vague to be enforced. Bush v. United States Postal Service, EEOC
Appeal No. 01A11640 (August 8, 2002). For example, while complainant
argues that he entered the agreement, in part, to remedy the agency's
decision to change his start time, the Commission does not find that
provision (1) includes such specificity. It is difficult to imagine what
kind of specific action would be considered a violation of the broadly
worded provision. Further, we find that under the settlement, the agency
is not required to do anything beyond what it is already necessary under
the law and to achieve operational efficiency. The agreement is void for
lack of consideration. See id. Consequently, the Commission determines
that the underlying complainant must be reinstated at the point at which
processing ceased.
CONCLUSION
The agency's final decision, finding no breach of the settlement
agreement, is VACATED and the matter is REMANDED to the agency in
accordance with the Order below.
ORDER
The agency is ordered to take the following action:
Upon receipt of this decision, the agency shall reinstate and continue the
processing of the captioned complaint from the point at which processing
ceased, in accordance with 29 C.F.R. 1614.108, and to provide complainant
with notice of this action.
A copy of pertinent documentation confirming compliance with this order
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (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 (R0408)
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 (Z0408)
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
January 27, 2009
__________________
Date
Date
1 Complainant also asserts that the complaint alleged that he was denied
a preferred bid.
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0120083433
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083433