01986203
05-12-2000
James S. Gonda, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
James S. Gonda v. United States Postal Service
01986203
May 12, 2000
James S. Gonda, )
Complainant, )
)
v. ) Appeal No. 01986203
) Agency No. 1F-924-1017-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Complainant timely appealed the agency's decision not to reinstate
his complaint of unlawful employment discrimination that the parties
had settled.<1> See 64 Fed. Reg. 37,644, 37,659-37,660 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.402(a),
� 1614.405, and � 1614.504).
The record indicates that on March 5, 1995, complainant filed a
complaint alleging that on January 30, 1995, he was not selected for
a PSDS Technician position. After completion of the investigation of
the complaint, complainant requested a hearing. Prior to a hearing,
the parties entered into a settlement agreement on June 27, 1996, which
provided, in part, that:
Complainant will receive eight (8) consecutive weekends of training
in PSDS for the purpose of becoming proficient in the position.
Thereafter, complainant will be used on an as needed basis on weekends
and for vacation coverage on Tour 2. It is understood by all parties
that the complainant's continued use as needed is contingent upon the
complainant's ability to perform in an acceptable manner.
Thereafter, on October 30, 1996, complainant alleged that the agency
breached the terms of the settlement agreement when it failed to provide
him with the opportunity to work on an as needed basis on weekends and for
vacation coverage after the completion of PSDS training. Specifically,
complainant alleged that during a "good portion" of October 1996, the
agency failed to call him to relieve an identified employee in PSDS,
who was taking annual leave. Complainant asserted that other employees
in that employee's section had been required to work overtime and
out-of-schedule hours to cover for that employee.
On March 17, 1997, the agency previously issued a decision finding no
settlement breach. Complainant appealed and the Commission, in EEOC
Appeal No. 01973894 (January 15, 1998), found the record insufficient to
determine whether the agency breached the settlement agreement. Thus,
the Commission vacated the agency's decision and remanded the matter for
a supplemental investigation. Specifically, the Commission ordered the
agency to supplement the record with all relevant documentation to show
what training complainant was given and whether any PSDS assignments
were available for complainant during the relevant time frame pursuant
to the settlement agreement.
In accordance with the Commission's order, the agency investigated
the matter. On July 6, 1998, the agency issued a decision finding
no settlement breach. The agency stated that management confirmed
that complainant received 89.63 hours of training. The agency also
stated that although a minimal amount of overtime (8 hours) was used
in PSDS during the identified employee's leave in October 1996, the
duties performed for that position were not those which would have been
performed by complainant.
The record contains statements from an acting supervisor of PSDS and a
Labor Relations Specialist indicating that complainant received 89.63
hours of training from July 13, 1996, through September 9, 1996, and he
received an additional 29.71 hours of training from September 9, 1996,
through October 4, 1996. The Labor Relations Specialist also indicated
that per a former PSDS supervisor, while the identified employee was on
leave in October 1996, the work normally performed by that employee was
covered by the PSDS technicians who normally worked in PSDS. The acting
supervisor indicated that PSDS technicians were not always covered while
on leave, and she and the other technicians usually covered for the
absent employee. The acting supervisor also indicated that complainant
required on going assistance and was not able to meet the proficiency
requirements of workload independently. The acting supervisor also noted
that complainant would not have been able to leave his work area until
after 11:00 a.m. due to his workload in his area, and after 11:00 a.m.,
he would not have helped the PSDS operation which had a 10:00 a.m. cut
off for payroll on day 01. The acting supervisor further stated that
complainant received PSDS assignment on December 20, 1997, and he was
offered but rejected to work in PSDS during Christmas week. The acting
supervisor noted that complainant was detailed to PSDS on an as needed
basis on February 21, 1998 through March 18, 1998.
On appeal, complainant contends that his training from July to October
1996, had no "real benefit to" him.
EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant
believes that the agency failed to comply with the terms of a settlement
agreement, the complainant should notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of when the complainant knew or should
have known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point processing ceased.
The agency shall resolve the matter and respond to the complainant,
in writing. If the agency has not responded to the complainant, in
writing, or if the complainant is not satisfied with the agency's attempt
to resolve the matter, the complainant may appeal to the Commission for
a determination as to whether the agency has complied with the terms of
the settlement agreement or final decision.
The Commission has held that settlement agreements are contracts between
the complainant and the agency and it is the intent of the parties
as expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule
when interpreting settlement agreements. The Commission's policy in
this regard is based on the premise that the face of the agreement best
reflects the understanding of the parties.
Upon review, the Commission finds that the agency properly complied with
the terms of the settlement agreement at issue. The record, undisputed by
complainant, indicates that complainant received 8 consecutive weekends
of training in PSDS from July 13, 1996, through September 9, 1996.
The record also indicates that complainant received an additional 29.71
hours of training from September 9, 1996, through October 4, 1996.
Complainant alleged that in October 1996, while an PSDS employee was on
leave, he was not given the opportunity to work on an as needed basis to
cover that employee. However, the agency stated that that employee's
work was covered by PSDS technicians who normally worked in PSDS.
The agency also stated that complainant was not used during the relevant
time period because he required on going assistance and was not able
to meet the proficiency requirements of workload independently in PSDS.
Since the agency, undisputed by complainant, contended that complainant
was not able to perform the work which was performed by the identified
PSDS employee, described above, the Commission finds that the agency
did not breach the terms of the settlement agreement when complainant
was not given the opportunity to cover that employee's work.
Accordingly, the agency's decision not to reinstate the settled matter
is AFFIRMED
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (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:
May 12, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.