0120070525
07-01-2009
Roosevelt Truitt, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Roosevelt Truitt,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070525
Agency No. 4G752020405
DECISION
Complainant filed a timely appeal with this Commission when the agency
failed to respond to his Notice of Non-Compliance with a Settlement
Agreement. See 29 C.F.R. � 1614.401(e); and 29 C.F.R. � 1614.504(b).
The settlement agreement, dated May 18, 2005, provided, in pertinent
part:
(1) The following modified job offer hours for Mr. Roosevelt
Truitt have been agreed upon: Tuesday, Thursday, Friday 8:30am-17:00pm.
His remaining work days will be 9:30am-18:00pm. This will be effective
immediately upon receipt of this notice and will remain effective until
Mr. Truitt is returned to full duty by his attending physician.
The record reveals that complainant was assigned new job hours in a
modified job offer dated January 12, 2006. According to complainant's
Notice of Appeal, he contacted an EEO Counselor and filed a formal
complaint on or about April 11, 2006, alleging discrimination when
his duty hours were changed in violation of the settlement agreement.
Complainant contends that the matter went before an EEOC Administrative
Judge, who determined that complainant was alleging a breach of his
settlement agreement. By letter to the agency dated October 16, 2006,
complainant informed the agency that it was in breach of the settlement
agreement, and requested that the agency specifically implement its terms.
Specifically, complainant alleged that the agency failed to abide by the
terms of the agreement when it changed his duty hours. The record does
not reflect that the agency responded to the notice of breach or issued
a final decision.
EEOC Regulation 29 C.F.R � 1614.504(a) provides that if complainant
believes that the agency has failed to comply with the terms of the
settlement agreement, then the complainant "shall notify the EEO Director,
in writing, of the alleged noncompliance within 30 days of when the
complainant knew or should have known of the alleged noncompliance."
EEOC Regulation 29 C.F.R � 1614.504(b) further provides that the agency
"shall resolve the matter and respond to the complainant, in writing."
If the agency has not responded to the complainant or if the complainant
is not satisfied with the agency's attempt to resolve the matter,
the complainant may appeal to the Commission for a determination as
to whether the agency has complied with the terms of the settlement
agreement or final decision. Id.
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).
To remedy a finding of breach, the Commission may order reinstatement
of the underlying complaint, or enforcement of the agreement's terms.
See 29 C.F.R. 1614.504(c). In this case, we find that ordering specific
performance of the agreement is the appropriate remedy in this case.
Complainant contacted the agency and states, on appeal, that the agency
never responded to his notice of breach. Further, the Commission
has attempted on several occasions to obtain the agency's response to
complainant's notice, but has not been successful in this endeavor.
Accordingly, we find the agency is in breach of the May 18, 2005
settlement agreement, and direct the agency to implement the ORDER below.
ORDER
To the extent that that the agency has not complied in the interim,
the agency is ORDERED to re-assign complainant to the duty hours he
held at the time of the breach. Specifically, complainant shall work
the following schedule: Tuesday, Thursday, Friday 8:30am-17:00 pm.
Complainant's duty hours on remaining work days will be 9:30am-18:00 pm.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented. The agency shall send
a copy of the report, with supporting documentation, to complainant.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 (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 (R0408)
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 (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
July 1, 2009
Date
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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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