0120113051
10-26-2012
L. Scott Hoffner, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
L. Scott Hoffner,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120113051
Agency No. 4E-590-0011-10
DECISION
Complainant filed a timely appeal with this Commission from a letter of determination by the Agency dated May 2, 2011, finding that it was in compliance with the terms of a March 18, 2010 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On March 18, 2010, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
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1. Whenever a delivery supervisor other than [a named Supervisor, Customer Services] is available at the Main Office, that supervisor will interact with [Complainant].
2. Whenever no other supervisor is available or there is an issue requiring immediate interaction, [Complainant] will cooperate with [Supervisor, Customer Services].1
..........
By letter to the Agency dated January 24, 2011, Complainant alleged breach. Specifically, Complainant alleged that on April 17 and 29, 2010, May 3 and 4, 2010, June 5, 2010, July 29, 2010, August 21, 2010, September 27, 2010, October 5, 2010, and December 16, 2010, the Supervisor, Customer Services breached the instant agreement by asking him questions and giving him instructions when another supervisor was available.
In its May 2, 2011 letter of determination, the Agency found no breach. The Agency stated that Supervisor, Customer Services stated that he did not interact with Complainant in violation of the instant agreement. In support of its assertions, the Agency submitted the affidavit of Supervisor, Customer Services.
The record contains a copy of the affidavit of Supervisor, Customer Services, dated February 11, 2011. Therein, Supervisor, Customer Services stated that on April 17, 2010, he was scheduled to work with a named 204-B supervisor (S1) but because S1 was late to work "I was going around for commitments...I asked [Complainant] for a commitment and make notes of a car show at the mall so he would know it that was going to delay him, asked him to account for the time in his commitment and then moved on to the next employee."
Supervisor, Customer Services further stated that on April 29, 2010, he was scheduled to work with another named supervisor (S2) and that "she was going to the street with a carrier. She had left and I did not know where she was. I felt she had already left with the carrier and we did not have [Complainant's] commitment written anywhere I went over and asked [Complainant] for his commitment."
Supervisor, Customer Services stated that on May 3 and 4, 2010, he and S2 worked together, and they scheduled the 3996's for all employees. Supervisor, Customer Services stated that he then handed out the 3996's to everyone, but that he did not speak with Complainant.
With respect to Complainant's allegation that on June 5, 2010, Supervisor, Customer Services told Complainant to take a piece of a route, he denied it. Specifically, Supervisor, Customer Services stated "I do not have record of this in my notes. If I did talk to him it was instruction. I do not believe [S1] was on the dock at that time." Supervisor, Customer Services stated that on the same day, he asked Complainant about his scan points because he had been late the previous night. Supervisor, Customer Services stated "I as a manager needed to know why [Complainant] did not comply with the rules, [S1] was not in the building at that time she came in later in the morning."
With respect to Complainant's allegation that on July 29, 2010, Supervisor Customer Services insisted taking to him about his departure time although S2 was present, Supervisor, Customer Services stated "I do not have anything in my notes about this."
Supervisor, Customer Services stated that on August 21, 2010, he drove by Complainant when he was going to lunch and thought that he was not wearing his seat belt and "it is my job to make sure all carriers are wearing their seatbelts." Supervisor, Customer Services stated that he then turned around and waited for Complainant "to drive by again. It did not look like he was wearing his seatbelt so I pulled up behind him and asked him if he had been wearing his seatbelt? He replied in a very rude 'of course!' I then thanked him and went about my business."
Complainant asserted that on September 27, 2010, Supervisor, Customer Services, became very agitated and rudely asked Complainant what he was doing at work. However, Supervisor, Customer Services denied this assertion, specifically stating that "I have in my notes that [Complainant] approached me and said he turned in the slip dated the 23rd."
Supervisor, Customer Services stated that on October 5, 2010, he was walking back to his desk when he saw Complainant "rummaging thru the top of my desk...he was going thru the file and [S2] was on the phone with her back turned to him. I asked him if I could help him with something and he turned and walked away not answer my question."
Supervisor, Customer Services stated that on December 16, 2010, S2 was working with the union doing carrier consultations for the route adjustment and "I was going around for commitments and asked [Complainant] for his commitment. He said [S2] is here and I said she was busy in consultations. He told me his times and I left."
ANALYSIS AND FINDINGS
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 Commission discerns no breach of the instant agreement. We note that the settlement agreement merely states that whenever a delivery supervisor other than Supervisor, Customer Services is available, that supervisor would interact with Complainant. The agreement also indicated that Complainant agreed that he would cooperate with Supervisor, Customer Services whenever there was no other supervisor is available or there was an issue that required immediate interaction. The record reflects that Supervisor, Customer Services only interacted with Complainant concerning work related issues and when S1 and/or S2 were unavailable.
Accordingly, the Commission AFFIRMS the Agency's finding of no breach of the March 18, 2010 settlement agreement.
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), at 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
October 26, 2012
__________________
Date
1 The settlement agreement also provides for the Agency to assure that Supervisor, Customer Services acknowledges that Complainant's performance is adequate as of March 12, 2009 and expunge Complainant's 7-Day Suspension concerning incomplete disposition of mail. These provisions are 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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