01A63225
09-07-2006
Robert L. Shofler,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A63225
Agency No. 4E-800-0328-00
DECISION
Complainant filed a timely appeal with this Commission from a letter of
determination by the agency dated April 24, 2006, finding that it was
in compliance with the terms of a March 13, 2003 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The March 13, 2003 settlement agreement provided, in pertinent part,
that:
9. It is agreed to reduce Complainant's route by one (1) hour total,
office and street time combined.1
The record reflects that complainant filed a formal complaint claiming
that he was the victim of unlawful employment discrimination when:
(1) on July 7, 2005, an EEO settlement agreement dated March 13, 2003,
was breached when management attempted to adjust his route to 1/2 hour
of the proper 1 hour adjustment; and (2) on July 7, 2005, his supervisor
publicly made a statement that if complainant did not like the adjustment
to his route, he should just transfer out of the station.
On September 20, 2005, the agency issued a final decision dismissing
claims (1) and (2) for failure to state a claim. The agency also found
that in regard to claim (1), complainant erred by raising the matter
in a formal complaint rather than using the procedure for processing
breach allegations, as set forth in 29 C.F.R. � 1614.504. On appeal,
the Commission found that the agency improperly dismissed claim (1)
for failure to state a claim. The Commission determined that the agency
should have instead referred this breach claim identified as claim (1)
to the proper EEO management official for processing under 29 C.F.R. �
1614.504. The Commission vacated and remanded the agency's dismissal of
claim (1) but affirmed the agency's dismissal of claim (2). On remand,
the agency was ordered to investigate whether there had been a breach of
the March 13, 2003 settlement agreement (claim (1)). Shofler v. United
States Postal Service, EEOC Appeal No. 01A60253 (March 24, 2006).
On April 24, 2006, the agency issued a letter of determination, which
is the subject of the instant appeal. Therein, the agency found no
breach of provision 9 of the March 13, 2003 settlement agreement.
The agency determined that the record supports a finding that the
Acting Station Manager stated that complainant's route was adjusted
and all approvals were received to reduce the delivers from 208 to 194.
The agency determined that the Acting Station Manager submitted a copy of
the Route Examination Worksheet dated July 14, 2005. The agency further
determined that the record reflects that complainant's supervisor stated
that initially 30 minutes were cut and "then they took the growth portion
off the route for another 30 minutes, which would have been a total of
one hour."
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).
The record in this case contains insufficient evidence for us to
determine whether a breach of provision 9 of the instant settlement
agreement has occurred. Specifically, the Commission determines that
the agency's letter of determination finding no breach is predicated
upon review of the record and statements by the Acting Station Manager
and complainant's supervisor, as discussed above. However, the record
contains no affidavits from The Acting Station Manager or the Supervisor
indicating that the agency fulfilled its obligations under the terms
of the settlement agreement. Given this lack of evidence, we are unable
to ascertain whether the agency complied with the settlement agreement.
The agency's finding of no breach of provision 9 of the March 13, 2003
settlement agreement is VACATED. The matter is REMANDED to the agency
for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
The agency shall supplement the record with evidence clearly showing
that it has complied with provision 9 of the settlement agreement.
The supplementation of the record shall include any documentation, such
as an affidavit from the Acting Station Manager and/or the Supervisor
indicating whether management agreed to reduce complainant's route by one
(1) hour total, office and street time combined following the execution
of the settlement agreement. Within thirty (30) calendar days of the
date this decision becomes final, the agency shall issue a new decision
concerning whether it breached the March 13, 2003 settlement agreement.
A copy of the agency's new decision must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848, Washington,
D.C. 20036. 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 (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 (R0900)
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 (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
September 7, 2006
__________________
Date
1 The settlement agreement also provides for complainant to be paid a
lump sum of $1,000; that complainant would be credited 80 hours of sick
leave; and that management would honor complainant's medical restrictions
dated February 4, 2003. These provisions are not at issue in the instant
appeal.
??
??
??
??
2
01A63225
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
01A63225
6
01A63225