0120090191
02-06-2009
Patrick J. Tullo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Patrick J. Tullo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090191
Agency No. 1C-451-0069-08
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated September 29, 2008, finding that it was in
compliance with the terms of the August 14, 2008 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 August 14, 2008 settlement agreement provided, in pertinent part,
that:
1. Management will produce an Assignment Order to move [Complainant]
to the first floor.
2. Management will have [Complainant's] locker moved from the second
floor to the 1st floor by 8/15/08.
By letter to the agency dated September 15, 2008, complainant alleged
that the agency was in breach of the settlement agreement. Specifically,
complainant alleged that "1) management didn't produce an assignment order
to give to me. I have no copy. 2) Management didn't move my locker to
the first floor, it's still on the second floor with all my equipment
and supply to do my job in limited duty. Management gave me a temporary
[locker]."
In its September 29, 2008 final decision, the agency found no breach.
The agency stated that according to Supervisor, Distribution Operations
(SDO), she prepared an Assignment Order to reassign complainant to perform
his limited duty on the first floor of Building A. SDO stated, however,
that she was reassigned from Building A to Building B as of August 18,
2008 and was no longer complainant's supervisor. SDO stated that while
she gave the Assignment Order to complainant's new supervisor (S1),
she did not follow up with him to ensure he gave it to complainant.
SDO further stated that she was not aware that complainant had not
received the Assignment Order she prepared until September 12, 2008, when
she received an inquiry by the ADR Specialist concerning complainant's
allegation of breach. SDO stated that following her conversation with
the EEO Specialist, she met with complainant and completed a second
Assignment Order on August 18, 2008.
The agency stated that according to S1, he hand delivered complainant
the Assignment Order prepared by SDO during the week of August 25,
2008. S1 stated that per the instructions of the Manager, Distribution
Operations (MDO) he took complainant to the vacant lockers on the first
floor of Building A; and that complainant chose his new locker assignment
during the week of August 25, 2008. S1 stated that on September 19,
2008, he was approached by SDO stating that complainant needed assistance
getting his personal belongings and supplies from the second floor to
the first floor. S1 stated that at that time, he was not aware that
complainant needed assistance; and indicated that complainant never
inform him that he had not fully occupied his new first floor locker.
S1 stated that on September 23, 2008, he assigned a Mail Handler to
assist complainant in moving his remaining belongings from the second
floor locker to the first floor locker. The agency noted that a review
of the record indicated that S1 and complainant signed an Assignment
Order on September 24, 2008, assigning him to Building A Re-Wrap Section
beginning August 16, 2008.
The agency stated that according to MDO, he stated that on August 17,
2008, he met with SDO and they identified a locker for complainant on
the first floor; and asked SDO to make arrangements for complainant
to have the locker. MDO stated that on the same day, August 17, 2008,
SDO informed complainant of his new locker assignment. MDO stated that
he was not aware that complainant had not moved all of his personal
belongings and supplies from the second floor until September 22, 2006,
through communication with the EEO Specialist. MDO stated that he
then contacted S1 and instructed him to assign a Mail Handler to assist
complainant in moving any remaining belongings from the second floor to
the first floor on September 23, 2008.
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).
Upon review, we agree that the agency substantially complied with
the settlement agreement. Moreover, we have held that the failure to
satisfy a time frame specified in a settlement agreement does not prevent
a finding of substantial compliance of its terms, especially when all
required actions were subsequently completed. Lazarte v. Department of
the Interior, EEOC Appeal No. 01954274 (April 25, 1996); Sortino v. United
States Postal Service, EEOC Request No. 05950721 (November 21, 1996),
citing Baron v. Department of the Treasury, EEOC Request No. 05930277
(September 30, 1993) (two weeks delay in transfer of official letter of
request rather than letter of apology found to be substantial compliance);
Centore v. Department of Veterans Affairs, Appeal No. 01A04637 (November
2, 2000) (a few days after sixty day time period for compliance not a
material breach of settlement agreement).
Further, we note that the agreement provides the agency to produce
an Assignment Order to move complainant to the first floor; and have
complainant's locker moved from the second floor to the first floor
by August 15, 2008. If complainant wanted the agency to provide him
assistance moving his personal belongings and supplies from the second
floor to the first floor locker, he could have negotiated with the
agency to include such provisions. See Jenkins-Nye v. General Service
Administration, EEOC Appeal No. 01851903 (March 4, 1987). Thus, the
Commission finds the agency complied with the instant agreement.
Accordingly, the agency's finding of no breach of the instant settlement
agreement is AFFIRMED.
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 (S0408)
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 (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 6, 2009
__________________
Date
2
0120090191
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120090191