01A14016_r
10-11-2001
Steven Solway, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Steven Solway v. United States Postal Service
01A14016
October 11, 2001
.
Steven Solway,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A14016
Agency No. 1F-914-0011-01
DECISION
Complainant filed a timely appeal with this Commission from a decision
by the agency dated May 18, 2001, finding that it was in compliance
with the terms of the March 9, 2001 settlement agreement into which the
parties entered.
The settlement agreement provided, in pertinent part, that:
(Based on the staffing and availability of the OJI's [on-the-job
instructors])
Counselee will be trained for the different areas of automation for
purposes of being used for overtime and employee will be placed on the
secondary OTDL [overtime desired list].
All efforts on both sides will be made to communicate more effectively.
By letter to the agency dated April 21, 2001, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
stated that he was trained in automation sections on March 13, March
14, and March 28, 2001, however, he states that he has requested
additional training so he could work automation which has been denied.
Complainant requests to be made whole for the lost instances he could
have worked overtime.
In its May 18, 2001 decision, the agency concluded that it had not
breached the March 9, 2001 settlement agreement. The agency stated
that complainant was trained in automation on March 13, 14, and 28,
2001, as well as May 8, 9, 10, 11, 12, and 21, 2001. The agency stated
that as agreed, the training has been scheduled as staffing permitted.
The agency stated that complainant's training would be completed by
June 1, 2001. The agency noted that complainant is on the OTDL list for
Automation Secondary Overtime Desired List. The agency stated that since
the agreement was signed, there have been no opportunities for overtime
on the Secondary OTDL in automation.
On appeal, complainant claims that the automated flat sorter is included
under the agreement as part of automation. Complainant acknowledges
that he is now certified to work overtime in the automation sections.
According to complainant, between March 28, 2001 through May 8, 2001,
he was denied any training in automation. Complainant states that
there were no staffing problems during March 28 through May 8, 2001,
and claims that he missed twenty-five hours of overtime by not being
qualified for certification to work in automation during this time frame.
The record contains a memorandum dated May 17, 2001, from Person A, the
Acting Manager of Distribution Operations, stating that complainant was
trained on March 13, 14, and 28, 2001 on automation. Person A stated
that complainant's training has been scheduled as staffing permitted and
noted that the next tentative opportunity for training is May 22, 2001.
Person A stated complainant has been trained in BCS and DBCS, but still
needs training on the OCRs. Person A stated that upon completion of
training, which is expected to be finished by June 1, 2001, complainant
will be qualified to work in all areas of automation (OCR, BCS, DBCS).
Person A stated that complainant has been added to the Automation
Secondary Overtime Desired List. Person A noted that complainant is on
the OTDL for several other operations as well. A copy of the OTDL is
included in the record which lists complainant's name on the Secondary
OTDL for Automation. In addition, Person A stated that automation did
not include the FSMs or the new AFSM 100s.
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).
In the present case, we find that complainant has failed to show that the
agency breached the March 9, 2001 settlement agreement. The agreement
provided that based on staffing and availability of the OJI's complainant
will be trained for the different areas of automation and will be placed
on the secondary OTDL. The agency has shown, and complainant admits
on appeal, that training for automation has been completed and that
he has been placed on the Secondary OTDL for Automation. In addition,
the Commission finds that the roughly three months it took the agency to
complete the training under the settlement agreement was not unreasonable
and does not constitute a breach of the agreement. See Northen v. USPS,
EEOC Request No. 05950774 (July 24, 1997) ("[G]iven that the settlement
agreement did not place any specific time limits on the agency, the fact
that the provisions were not implemented immediately does not constitute
a breach of the agreement."). With regard to complainant's assertion
on appeal that he was not trained on the FSM or AFSM-100s, we find that
complainant failed to show that this additional training was required
under the terms of the agreement.
Accordingly, the agency's decision that it did not breach the settlement
agreement is 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
October 11, 2001
__________________
Date