0120090308
02-11-2009
Thomas G. Bica, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Thomas G. Bica,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090308
Agency No. 4C-440-0046-04
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated September 18, 2008, finding that it was in
compliance with the terms of the January 21, 2005 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 January 21, 2005 settlement agreement provided, in pertinent part,
that:
The Postal Service agrees that it will comply with the terms the NALC/USPS
Step B decision dated December 29, 2003 (attached hereto and marked as
'Exhibit A'), and the JCAM, section 8.4 - Voluntary Schedule Changes).1
The record reflects that in Step B decision dated December 29, 2003
provided, in pertinent part, that:
The Dispute Resolution Team carefully reviewed all the documentation in
the case file and after lengthy discussion has decided to RESOLVE the
grievance. Management, upon receipt of a request for change of schedule,
should meet with the union steward to discuss any concerns for the day or
days of the schedule change and the conditions of the needs of the service
before denying any such request. If the work load of that particular
day allows, the change of schedule should not be unreasonably denied.
There is no monetary settlement.
By PS Form 2564-A "Information for Pre-Complaint Counseling" to the agency
dated May 13, 2006, complainant stated "I am alleging discrimination
against the Poland Branch and Youngstown City Post Offices for not
allowing my change of schedule (PS Form 3189) request for 5/11/06.
I have the above EEO Settlement with a resolution that is being breached
by management."2
The record reflects that by letter dated June 16, 2006, complainant
again alleged breach of the January 21, 2005 settlement agreement.
Specifically, complainant stated that his Form 3189 was "disapproved in
violation of my prior settlement (5/10/06)."
In its September 18, 2008 final decision, the agency found no breach.
The agency stated that according to the Postmaster (PM), he was not aware
of the January 21, 2005 settlement agreement or the Step B decision at
the time he disapproved complainant's request for a change of schedule
and did not become aware of it until after the grievance was filed
based on the disapproval. PM stated that approvals and disapprovals
of PS Form 3189 are on a case by case basis. PM stated that on May 11,
2006, complainant's route started 1/2 hour earlier than all but two other
routes. PM further stated that he gave complainant several options on
that day to include the curtaining of mail and also gave him two hours
of auxiliary assistance which would have afforded him more than enough
time to complete his assignment even earlier than if the PS Form 3189
were approved. PM indicated that this discussion took place on the day
of the denial. The agency concluded that a review of the record reflects
that PM approved complainant's change of schedule requests prior to the
May 10, 2006 denial; and that complainant had no issues or concerns for
other change of schedule requests that he may have submitted after the
May 11, 2006 denial.
On appeal, complainant contends that PM breached the instant settlement
agreement. Specifically, complainant states contrary to the PM's
statement, there was "no discussion or reasonable joint decision per the
step B resolve." Complainant further states "in breach of the B team
resolve included in my previous settlement, management denied my request
based on a blanket policy, failed to give a reason for the denial, and
failed to make a reasonable decision based on the facts of my case with
either me or my alternate steward [identified steward]."
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 agency breached the settlement agreement. The Commission notes the
terms of December 29, 2003 Step B decision indicates that management,
upon receipt of a request for change of schedule, should meet with the
union steward to discuss any concerns for the day or days of the schedule
change and the conditions of the needs of the service before denying such
request. There is no record in evidence indicating that PM, upon receipt
of complainant's request for change of schedule and before denying it,
met with a union steward to discuss any concerns and/or the conditions
of the needs of the service before denying complainant's request.
To remedy a finding of breach, the Commission may order reinstatement or
the underlying complaint, or enforcement of the agreement's terms. See 29
C.F.R. � 1614.504(c). We find that in this particular circumstance,
the proper remedy is to order the agency to comply with the terms of
the agreement.
Accordingly, the Commission REVERSES the agency's finding of no breach
of the January 21, 2005 settlement agreement and REMAND this matter so
that the agency can undertake remedial action in accordance with the
ORDER below.
ORDER
The agency is ORDERED to implement the terms of the settlement agreement
by undertaking the following action:
The agency shall make sure that management, upon receipt of a request from
complainant for a change of schedule, will meet with the union steward
to discuss any concerns for the day or days of the schedule change and
the conditions of the needs of the service before denying such request.
If the work load of that particular day allows, complainant's change of
schedule should not be unreasonably denied.
The agency is further directed to submit a report of compliance,
as provided in the "Implementation of the Commission's Decision."
The report shall include all supporting documentation verifying that
the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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, D.C. 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 (M0408)
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 (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
February 11, 2009
__________________
Date
1 The record reflects that on August 8, 2008, an EEOC Administrative Judge
(AJ) issued a decision without a hearing, finding no discrimination
for Agency No. 4C-440-0215-06. The allegation raised by complainant
related to his claim that he was discriminated against on the basis of
sex when his request for a temporary change of schedule for May 11,
2006 which was disapproved. In her decision, the AJ concluded that
the EEO Specialist's written statement to complainant that the breach
of his prior EEO complaint was the same issue as the issue accepted in
the EEO investigation was inaccurate. Thus, the AJ ordered the agency
to investigate complainant's allegation of breach. Furthermore, the
record reflects that on September 18, 2008, the agency issued a decision
finding no breach which is the subject of the instant appeal.
2 The record does not contain a copy of complainant's PS Form 2564-A
dated May 13, 2006.
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0120090308
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090308