01A22009_r
06-27-2002
Robert A. Schultz, Complainant, v. John E. Potter, Postmaster General United States Postal Service, Agency.
Robert A. Schultz v. United States Postal Service
01A22009
June 27, 2002
.
Robert A. Schultz,
Complainant,
v.
John E. Potter,
Postmaster General
United States Postal Service,
Agency.
Appeal No. 01A22009
Agency No. 4J-600-0009-02
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated February 14, 2002, finding that
it was in compliance with the terms of a November 1, 2001 settlement
agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29
C.F.R. � 1614.405.
The November 1, 2001 settlement agreement provided, in pertinent part,
that:
(2) [Complainant] and [Postmaster] and [Supervisor] agree that
[Complainant's] normal leave time will be 9:50 AM and his return time
will be 3:50 PM. They all agree that these times can be adjusted based
on mutual agreement on a day-to-day basis taking into consideration work
load, weather and road conditions;
(3) [Supervisor], [Postmaster], and [Complainant] agree average normal
work loads will include: average DPS=1488 pieces; average parcels=13
pieces; average accountable=3 pieces. They agree these averages will
change from time-to-time as the route is reviewed;
(4) [Complainant] agrees to provide detailed estimates on his 3996 forms
when he requests additional help, overtime or curtailment;
[Supervisor], [Postmaster], and [Complainant] mutually agree to treat
each other with dignity and respect in connection with how and where
they speak to each other; and
[Postmaster] and [Supervisor] �management� agree they will advise
[Complainant] of any concerns prior to the issuance of any discipline.
By letter dated January 14, 2002, complainant alleged that the agency
breached the settlement agreement. Specifically, complainant alleged
that the agency breached claims (2), (3), (4), (8) and (9) of the
settlement agreement when on December 20, 2001, management disapproved
his PS Form 3996 when he requested 45 minutes of auxiliary assistance;
complainant was instructed to make up the time and was �screamed at�
when he brought back undelivered mail; on December 29, 2001, management
issued him a Letter of Warning for Expansion of Street Time and Failure
to Follow Instructions; and on January 11, 2002, management ordered
him to complete his deliveries by 3:30 p.m.
In its February 14, 2002 FAD, the agency found no breach. In regard to
provisions (2) and (3), management officials stated that the decision
to disapprove complainant's request for auxiliary assistance was not a
violation of the agreement. Management further stated that complainant
was authorized an additional 20 minutes of street time on December 21,
2001, and that the additional time should have been adequate taking
into consideration the day's variable of work load, weather, and road
conditions.
Regarding provision (4), the agency determined that this provision does
not make any demands of management for it to be in compliance.
Regarding provision (8), the agency determined that complainant was
always treated with respect when management officials speak with him.
Regarding provision (9), the agency indicated that discussions with
complainant took place prior to the issuance of Letter of Warning and
that complainant was provided with an opportunity to explain his actions.
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 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).
Provisions (2) and (3)
In regard to provisions (2) and (3), we find that the agency properly
determined that it did not breach these provisions. According to
provisions (2) and (3), the parties agree that complainant's times can
be adjusted based on mutual agreement on a day-to-day basis taking
into consideration work load, weather and road conditions and that
complainant's average normal work loads will change from time-to-time
as the route is reviewed. The record reveals that complainant received
an additional 20 minutes of street time on December 20, 2001.
Provision (4)
Regarding provision (4), we find that based on its "plain meaning" it
only requires complainant to provide detailed estimates on his 3996 forms
when he requests additional help, overtime or curtailment. It provides
for no affirmative agency obligation. Accordingly, we find no breach
of provision (4).
Provision (8)
With respect to provision (8), we find that this provision is void
for vagueness. Specifically, we
find that the requirement that the parties "mutually agree to treat each
other with dignity and respect in connection with how and where they
speak to each other� is too vague to be enforced. The provision fails
to confer on complainant any benefit that he was not already entitled
to as a matter of law.
Provision (9)
Regarding provision (9), we find that the agency properly determined that
it did not breach this provision of the agreement. The record contains
the December 29, 2001 Letter of Warning and the record reflects that
management discussed its concerns with complainant prior to the issuance
of the letter and that complainant was given an opportunity to explain
his actions.
Accordingly, the agency's decision finding no breach of the settlement
agreement was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 27, 2002
__________________
Date