01A05886
01-08-2001
Wesley Jimenez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Wesley Jimenez v. United States Postal Service
01A05886
January 8, 2001
.
Wesley Jimenez,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A05886
Agency No. 4A-105-0024-00
DECISION
Complainant filed a timely appeal with this Commission from an agency
final decision, dated August 18, 2000, finding that it was in compliance
with the terms of the February 7, 2000 settlement agreement into which the
parties entered.<1> 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:
The parties agree to maintain open communication with one another;
(2) The parties agree to treat each other with respect and dignity;
(3) Complainant will be offered the opportunity to become a 204B in the
Pearl River Post Office; and,
(4) Complainant's representative will be reimbursed travel expenses in
the sum of $151.00
By letter to the agency dated June 29, 2000, complainant alleged that
the agency breached the settlement agreement, and requested that the
agency reinstate his complaint. Specifically, complainant alleged
that the agency failed to comply with paragraph (3) of the agreement,
because management failed to make a �serious attempt� at providing
him with training and the opportunity to perform 204-B level duties.
Complainant claimed that less than five percent of his time has been
spent on 204-B duties, while other employees are spending more time on
such tasks. As a remedy, complainant requested that he be entered into
the upcoming Associate Supervisor Program (ASP).
In its August 18, 2000 decision, the agency concluded that it was
in compliance with the settlement agreement. During its inquiry, the
agency found that complainant performed as an Acting Supervisor Customer
Service in Pearl River Post Office. According to the agency, complainant
worked as 204-B for 102.22 hours out of 1200 hours worked. Moreover,
the agency asserted that management has the right to determine the method
and personnel by which operations are conducted.
On appeal, complainant argues that the Human Resources Director and
the Postmaster promoted the terms of the settlement agreement while
they never intended to adhere to them. Complainant asserts that he
only worked 204-B duties approximately eight percent of the time,
while any collateral duty comprises at least 25 percent of one's time.
Complainant also contends that a conflict exists in that the agency
official who issued the August 18, 2000 decision also participated in
the mediation attempts as a management representative.
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).
As a preliminary matter, the Commission finds that there may be a conflict
of interest with regard to the agency's finding of no settlement breach.
Specifically, the individual named in the signature line of the agency
decision is also named as the Management Representative in the settlement
agreement. In an effort to resolve the apparent conflict, the agency
wrote to the Commission in November 2000, and requested permission to
rescind the August 18, 2000 decision. According to the Manager of EEO
Compliance & Appeals for the agency's New York Metro Area, if the agency's
decision was rescinded he would authorize an independent investigation
and issue another decision himself. However, we find since the present
record is before us and more than 35 days have passed since complainant
alleged noncompliance, we will make a determination as to whether the
agency has breached the settlement agreement. See 29 C.F.R. �1614.402(b).
Additionally, the agency is advised to avoid such conflicts in the future
by issuing decisions with impartial agency officials.
In the instant case, complainant alleges that provision (3) of the
settlement agreement was breached. The agency was obligated to offer
complainant �the opportunity to become a 204-B in the Pearl River Post
Office.� Complainant admits that he was given 204-B duties, but argues
that those duties only comprised approximately eight percent of his work.
The Commission finds that the language of the settlement agreement does
not require the agency to provide complainant with a specific amount of
204-B work. It appears that complainant was offered, and performed,
204-B tasks. Therefore, we find that the agency did not breach the
settlement agreement. Accordingly, the agency's decision was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
January 8, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.