0120100603
04-07-2011
James J. Brown, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Northeast Area), Agency.
James J. Brown,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120100603
Agency No. 1B-021-0015-06
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated October 7, 2009, finding that it was in compliance with the terms of a May 17, 2006 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The May 17, 2006 settlement agreement provided, in pertinent part, that:
[Management Official] agrees, per [named employee], to give [Complainant] Saturdays and Sundays off with a 5pm start - in addition training for back up, with a 3pm start as needed, on 010 paperwork & or scorecard.1
By letters to the Agency dated August 18, 2009 and September 1, 2009, Complainant alleged breach. Specifically, Complainant stated "I have been forced to bid as a result of an Article 12 action and have done so, under protest, as not to be slotted into a bid I would not choose. I feel that this action is a direct breach of my E.E.O. resolution."
In its October 7, 2009 final decision, the Agency found no breach. The Agency stated that an Agency Operations Support Specialist (S1) stated that for the last three years, Complainant worked 1500-2350 with non-scheduled days of Saturday and Sunday in accordance with the settlement agreement. S1 further stated that the Agency recently had been consolidating positions and adjusting staff levels due to severe volume losses in order to save money and more efficiently process the mail. S1 stated Complainant's duties and work schedule were no longer required as a result of the staffing and volume changes. S1 stated that Complainant can bid for any vacant clerical positions and become a successful bidder as long as he meets the work requirements of the position.
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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).
The May 2006 settlement agreement imposed upon the Agency an affirmative obligation to give Complainant Saturdays and Sundays off with a 5:00 p.m. start time as well as training for back up, with a 3:00 p.m. start time as needed. A review of the record reflects that the Agency complied with the agreement. Complainant's work schedule had been changed to a 5:00 p.m. start time with Saturday and Sundays off days. The agreement did not provide a time limit on the duration of Complainant's work schedule assignment. The Commission has held that a settlement agreement that places a Complainant into a specific position and start time, without defining the length of service or other elements of the employment relationship, will not be interrupted to require the Agency to employ the Complainant in the identical job specified forever. See Parker v. Department of Defense, EEOC Request No. 05910576 (August 30, 1991); Papac v. Department of Veterans Affairs, EEOC Request No. 05910808 (December 12, 1991); Elliott v. United States Postal Service, EEOC Request No. 01970474 (August 27, 1997). Therefore, we find that the Agency did not breach the settlement agreement, as it assigned Complainant to the same work schedule for approximately three years and five months, until a business necessity, unforeseen in 2006, resulted in the change of duties and work schedule.
The Agency's final decision finding no breach of the May 17, 2006 settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 (S0610)
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 (Z0610)
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
April 7, 2011
__________________
Date
1 The settlement agreement also reveals that Complainant's issues with a named employee are settled and that Complainant agreed to this agreement until he assumes a regular bid position. This provision is not at issue in the instant case.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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