Tony DiBenedetto, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 4, 2000
01986413 (E.E.O.C. Feb. 4, 2000)

01986413

02-04-2000

Tony DiBenedetto, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Tony DiBenedetto v. United States Postal Service

01986413

February 4, 2000

Tony DiBenedetto, )

Complainant, )

)

v. ) Appeal No. 01986413

) Agency Nos. 1F-921-0011-97

William J. Henderson, ) 1F-921-1072-96

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Complainant timely appealed the agency's decision that denied his

claim that the settlement agreement entered into between the parties

had been breached. (see 64 Fed. Reg. 37,644, 37,659 (1999) (to be

codified and hereinafter cited as 29 C.F.R. �1614.402(a)), and (see 64

Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter cited

as 29 C.F.R. �1614.504(b)), EEOC Order No. 960, as amended.<1>

ISSUE PRESENTED

The issue on appeal is whether the agency breached the settlement

agreement.

BACKGROUND

Complainant filed a formal EEO complaint wherein he alleged that he

was discriminated against on the bases of his race (Caucasian), color

(white), national origin (Italian), sex (male), and in reprisal for his

previous EEO activity when:

1. On July 6, 13, 20, and 22, 1996, he was not allowed to work

non-scheduled days.

2. On September 25, 1996, he was not allowed to report for work early.

3. He was denied overtime on November 1-2, 1996, December 16-20, 1996,

December 23-24, 1996, and January 10, 1997.

4. He was harassed about working overtime on November 1-2, 1996.

5. On December 25, 1996, he was threatened about his restroom privilege

as his supervisor docked him ten minutes pay for not being in his

location working.

6. On January 4 and 11, 1997, he was denied penalty overtime.

The complaint was accepted for investigation. Subsequent to the

investigation, complainant requested a hearing before an EEOC

Administrative Judge. The complaint was resolved by a settlement

agreement entered into on September 9, 1997. The agreement stated

in relevant part that complainant would be compensated for the ten

minutes he used to go to the restroom. The agreement further provided

that complainant would receive five full tour overtime make-ups at the

mutual convenience of himself and the agency. The agreement indicated

that this latter provision was to be effected over a six-month period.

On March 18, 1998, complainant contacted an EEO Counselor and claimed that

the agency had breached the settlement agreement. Complainant stated

that he was not afforded the opportunity to make up overtime and he also

was not paid for the ten minutes of Christmas pay that he was docked.

As a remedy, complainant requested that he be paid for forty hours of

overtime and ten minutes of his Christmas pay.

By memorandum dated August 7, 1998, complainant's supervisor informed the

EEO Office that complainant has been on light duty unable to work overtime

for approximately a three-month period. According to the supervisor,

complainant wished to schedule make-up overtime at his own convenience

and this has an adverse impact on operations. The supervisor further

stated that complainant is now refusing to do the make-up overtimes

based on other issues.

In its final decision dated August 12, 1998, the agency determined that

the settlement agreement has not been breached. The agency stated that

complainant was unwilling to coordinate dates to complete the make-up

overtime. According to the agency, management indicated that they were

attempting to work with complainant in order to establish overtime make-up

dates and that there has been no intention to violate the agreement.

On appeal, complainant states that it is not his responsibility to

schedule days to work because he does not know when there will be work

available. Complainant claims that it is management's responsibility

to notify him when work is available to make-up overtime. According to

complainant, he contacted the Manager, Distribution Operations, on

several occasions to schedule the make-up overtime, but the Manager

never notified him when he could perform the make-up overtime. Further,

complainant claims that he was never compensated for the ten minutes

of Christmas pay that he was docked. Complainant requests that his

complaint be reinstated and remanded for a hearing.

In response, the agency asserts that complainant was on light duty

for three months and was unwilling to coordinate dates to complete the

overtime make-up.

ANALYSIS AND FINDINGS

Volume 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter

cited as 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.

If the complainant believes that the agency has failed to comply with

the terms of a settlement agreement or final action, 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. The complainant may request that the terms of

the agreement be specifically implemented, or, alternatively, that the

complaint be reinstated for further processing from the point processing

ceased.

Volume 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter

cited as 29 C.F.R. �1614.504(b)) provides that the agency shall resolve

the matter and respond to the complainant, in writing. If the agency has

not responded to the complainant, in writing, 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 action.

The complainant may file such an appeal 35 days after he or she has served

the agency with the allegations of noncompliance, but must file an appeal

within 30 days of his or her receipt of an agency's determination.

The Commission has consistently held that settlement agreements are

contracts between the complainant and the agency, and 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, 381 (5th Cir. 1984).

In the instant matter, complainant claimed that the agency breached the

settlement agreement by not affording him the opportunity to perform the

make-up overtime and by not compensating him for the ten minutes of

Christmas pay that he was docked. We find with regard to that portion of

the settlement agreement dealing with overtime make-up opportunities that

it has not been established that the settlement agreement was breached.

The agreement provided that complainant would receive over a six-month

period five full tour overtime make-up opportunities at the mutual

convenience of himself and the agency. The agency maintains that

complainant has been unwilling to coordinate dates to complete the make-up

overtime. The agency also states that complainant wanted to be scheduled

for overtime at his own convenience, which has an adverse impact on

operations. We find that complainant has not established that the agency

at a minimum discussed extending overtime make-up opportunities with him

during the relevant six-month time period. Complainant also has not refuted

the agency's position that he was unwilling to coordinate dates to complete

the make-up overtime. Although complainant has not received the five

overtime make-up opportunities, we find that the agency's actions with regard

to this term of the agreement do not constitute a breach of the settlement

agreement.

However, as for the compensation due complainant under the agreement,

we find that the agency has submitted no evidence that it has complied

with this term of the agreement. The settlement clearly specifies that

complainant was to be compensated for the ten minutes of pay that he was

docked. In view of there being no evidence to establish compliance, we

find that the agency has breached this term of the agreement. Since none

of the terms of the settlement have been yet fulfilled, we find that

the proper remedial relief is to reinstate the complaint for further

processing. Accordingly, the agency's final decision finding that there

was no breach of the settlement agreement is hereby REVERSED. This matter

is REMANDED for further processing pursuant to the ORDER below.

ORDER

The agency is ORDERED to reinstate the complaint and resume processing

of the complaint from the point processing ceased. Within fifteen (15)

calendar days of the date this decision becomes final, the agency shall

submit a written request for a hearing to the appropriate EEOC District

Office. A copy of the agency's request should be provided to complainant

and must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993).

If the complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (R1199)

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:

February 4, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date

1 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all Federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at WWW.EEOC.GOV.