0120091649
06-22-2010
Roderick L. Ford, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Roderick L. Ford,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120091649
Agency No. 1E-8910-034-07
DECISION
Complainant filed a timely appeal with this Commission from a final
determination (FD) by the Agency dated January 23, 2009, finding that
it was in compliance with the terms of the August 28, 2007 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 settlement agreement provided, in pertinent part, that:
(2)(d) Management agrees to follow up on the allegations listed
in Attachment "A"1 of this Agreement, and to take action within the
authority and parameters of management.
(2)(f) Management agrees to contact the/a "workplace improvement analyst"
to address the request outlined/listed in Attachment "A" that requests
the need for a workplace improvement team.2
By letter to the Agency dated December 26, 2008, Complainant alleged that
the Agency was in breach of the settlement agreement, and requested that
the Agency specifically implement its terms. Specifically, Complainant
alleged that "[b[ecause of noncompliance on the part of management,
the same situation that prompted this EEO action has again occurred."
He further asserted: "The workplace improvement analyst did come in and
interview individuals in the work section." He notes however, that
"[n]othing else in this agreement has been changed or fixed to date
which has prompted more of the same behavior issues that propitiate
[sic] this hostile work environment."
In its January 23, 2009 FD, the Agency first noted that in a discussion
with the EEO ADR Specialist on January 2, 2009, Complainant agreed that
items (1), (2)(a), (2)(b) and (2)(c) were simply descriptions of what
happened during Mediation. The FD further found that item (2)(e) was
simply an acknowledgment by Complainant that he would not be provided with
confidential information about other employees. The FD then noted that
Complainant himself stated that the Agency had complied with item 2(f).
Accordingly, the FD found that the only remaining item was 2(d).
The FD noted that pursuant to term 2(d), management was obligated to
"follow up" on Complainant's allegations, and to "take action" within
management's authority. The FD found that the Agency was in compliance
with this term, in that management did follow-up by sharing Complainant's
concerns with the Workplace Improvement Analyst, and after everyone in the
Transportation Department was interviewed, management continued to work
on the Analyst's recommendations. The FD also noted that the Manager,
Transportation/Networks indicated that she met with Transportation
Supervisors and advised them of the issues of concern. The FD noted
that the Manager further stated that she had received positive feedback
on how the management team is doing. The FD concluded that no breach
of settlement occurred.
On appeal, Complainant maintains, however, that a breach of settlement
agreement did occurr. He also points out that the conduct he complained
about is still occurring. He states: "individuals who worked off the
clock still do so to this day. The number of employees who congregated
in the dispatch office has in fact increased. Personal use of postal
computers in that office has increased to include checking personal e-mail
and searching for mates." In response, the Agency maintains that it is
in compliance with the settlement agreement.
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. 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).
In the instant case, the Commission discerns no breach of the terms of
the settlement agreement as it was written. Initially, we note that we
agree that items (1), (2)(a),(b),(c) and (e) do not require any specific
action to be taken by either of the parties.
Next, we note that the Agency agreed that it would "contact" a Workplace
Analyst, "follow up" and "take action." The Commission finds these terms
to be non-specific, and subject to interpretation. However, we cannot
conclude, based on this record, that the Agency is in non-compliance.3
In addition to the actions that the FD found were taken by management in
order to comply with the agreement, we note that the Manager also provided
a specific example of an issue that she addressed in an attempt to comply
with the terms of the settlement agreement, namely, she immediately
spoke with the Supervisors, about the matter of an employee smoking in
a postal vehicle. We further note that the record contains a copy of
a detailed "Workplace Climate Assessment Report" which the Workplace
Analyst produced based on her interviews with employees at the facility,
which contains a summary of the input received during the interviews,
and recommendations. The Commission is satisfied that the terms of this
particular settlement agreement were met.
CONCLUSION
We AFFIRM the FD's finding that the Agency was in compliance with the
August 28, 2007 settlement agreement.
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
__6/22/10________________
Date
1 In Attachment "A", Complainant describes his work environment as being
unfair, discriminatory and hostile, and provides specific examples of
conduct about which he disapproves.
2 Although not specifically quoted here, the settlement agreement does
contain items enumerated (1), (2)(a) - (2)(c), and (2)(e). These items
will be addressed below.
3 To the extent that Complainant believes he has been subjected to new
incidents of discrimination since signing the settlement agreement,
we advise Complainant that he must seek EEO counseling concerning such
incidents, and may choose to file a new formal complaint.
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0120091649
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091649