0120083524
02-12-2009
Kenneth C. Roberts, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kenneth C. Roberts,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 0120072576, 0120083524
Agency Nos. 1H-381-0031-06, 1H-381-0019-07
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, dated April 23, 2007, finding that it was in compliance with
the terms of the March 28, 2006 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.
According to complainant, in February 2006, he filed an EEO complaint.
The matter was assigned Case No. 1H-381-0031-06. The parties agreed to
mediate, and the matter was resolved by a settlement agreement executed
on March 28, 2006. The agreement provided, in pertinent part, that
(1) [Agency Official "W"] will assign [complainant] to Machine 22 on a
regular basis. This information will be provided to [Agency Official
"S"].
It appears from the record that complainant alleged breach of the
agreement on at least two occasions, in December 2006 and in September
2007, when he was purportedly assigned to Machine 19 and Machine 4,
respectively.
In its April 23, 2007 decision, the agency agreed that is could not
comply with provision (1) "at all times." Specifically, management
understood that the problem raised in mediation was that other employees
were assigned to the same machine on most days while complainant was
moved more often. One of the reasons complainant was assigned to
different machines, stated the agency, was due to his involvement with
grievance activities during the beginning of the tour, when assignments
were determined. Consequently, this impacted management's ability to
honor the agreement. Moreover, the agency cited the union agreement
requirements that the agency holds the right to maintain the efficiency
of operations and determine the methods by which such operations are
conducted. Therefore, concluded the agency, since it could not honor
the agreement at all times, the complaint would be reinstated from the
point processing ceased. Complainant appealed the decision, which was
assigned EEOC Appeal No. 0120072576.
Since the filing of EEOC Appeal No. 0120072576, the record reveals that
the dispute was once again resolved by another agreement, dated November
19, 2007, wherein complainant agreed to withdraw Case No. 1H-381-0019-07.
Specifically, this settlement provided, in pertinent part:
"As per mediation, dated 3/28/06, [complainant] will be assigned back
on DBCS 22."
Complainant allegedly made several attempts to raise a claim of breach,
regarding the November 2007 agreement, to no avail. According to the
statement submitted with EEOC Appeal No. 0120083524, complainant contacted
the EEO Manager on December 8, 2007 regarding the non-compliance.
When he did not receive a response, complainant explains that he
filed an informal complaint on January 15, 2008. Complainant asserts
that he was not given the opportunity to file a formal complaint, and
made additional requests for counseling, which the agency purportedly
consolidated into Case No. 1H-381-0027-08.1 In his appeal statement,
for Appeal No. 0120072576, complainant contends that he has not received
any response from the agency on the matter. EEOC regulations provide
that if the agency has not responded to the complainant's allegation of
breach in writing within thirty-five days of receiving the allegations
of non-compliance, the complainant may appeal to the Commission. See 29
C.F.R. � 1614.504(b). Consequently, we find that complainant's second
appeal is properly before us.
The Commission exercises its discretion, pursuant to 29 C.F.R. 1614.606,
to consolidate and address complainant's appeals, identified above, in
a single decision because each matter arises from a common set of facts.
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, as noted above, the agency admitted that it was
unable to comply with the March 2006 agreement and regularly assign
complainant to Machine 22. This provision was incorporated by reference
into the subsequent November 2007 agreement. Complainant continues to
contend that the agency has failed to regularly assign him to Machine 22
and the agency does not dispute his assertions. Consequently, we find
that the agency has breached both the March 2006 and the November 2007
agreements.
Where, as here, a breach is found, the remedial relief is either the
reinstatement of the complaint for further processing or specific
enforcement of the settlement agreement. The Commission finds that
reinstatement in this matter is the more appropriate remedy. If the
complaint is reinstated for further processing, then the parties must
be returned to the status quo at the time that the parties entered
into the settlement agreement, which requires that the complainant
return any benefits received pursuant to the settlement agreement. See,
e.g. Amour v. Department of Defense, EEOC Appeal No. 01965593 (June 24,
1997); Komiskev v. Department of the Army, EEOC Appeal No. 01955696
(September 5, 1996).
CONCLUSION
In light of our findings of breach, the matter is REMANDED to the agency
for further processing in accordance with this decision and the Order
below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall reinstate the settled complaints for further processing,
from the point processing ceased. The agency shall send a letter
to appellant informing him that the complaints are being reinstated.
A copy of the agency's letter, reinstating the complaints, must be sent
to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 (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
February 12, 2009
__________________
Date
1 In a letter from the agency, dated January 17, 2008, complainant was
notified that an inquiry into his claim of breach was conducted and no
breach was found. Therefore, complainant was informed that he could
"opt to file a formal complaint." The Commission notes that the agency
improperly processed complainant's breach claim as a new allegation of
discrimination. Complainant was not required to file a formal complaint,
but merely inform the agency in writing of the alleged non-compliance.
See 29 C.F.R. � 1614.504(a).
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0120072576
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120072576, 0120083524
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0120072576