William C. Hogan, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 23, 2009
0120083626 (E.E.O.C. Jan. 23, 2009)

0120083626

01-23-2009

William C. Hogan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


William C. Hogan,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120083626

Agency No. 4H-304-0128-05

DECISION

Complainant filed an appeal with this Commission from an agency decision,

dated April 3, 2008,

finding that it was in compliance with the terms of several settlement

agreements 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.

According to the agency, the instant appeal concerns three settlement

agreements. The agreements were executed on January 13, 1999; July 18,

2000; and May 5, 2005.

The 1999 settlement agreement provided, in pertinent part, that:

(1) Supervisors agree to learn more about OCD and [illegible] the

Accommodation Network to better understand his unique needs.

(2) Supervisors understand [complainant's] illness and recognize

his need for sick time. [Complainant] will submit a 3979 to a supervisor

to be paid sick time. [Complainant] will check FMLA on 3971 if the time

off is due to OCD.

(3) [Complainant] will prepare the route in a way that his first class

[illegible] mail is up and he is leaving the facility to begin the route

by 11 a.m. The time will be adjusted if meetings or training occur.

(4) [Complainant] willingly will have his route preparation procedures

evaluated and train him on ways to help him be more effective. The

evaluator and trainer will be knowledgeable about ODC and that

[complainant] is comfortable with.

Similarly, in the settlement executed in 2000, the parties agreed:

(1) Management at the Cumberland Carrier Facility willing agrees [sic]

to learn more about Obsessive Compulsive Disorder (OCD) by viewing a

tape and OCD materials to be provided by [complainant]. In the future,

any new supervisor that will become involved with [complainant] will

be made aware of [his] OCD [illegible] to be able to communicate more

effectively with him.

(2) [Complainant] also agrees to provide additional appropriate materials

[remainder illegible]

(3) [Complainant] and his family agree to provide ongoing information

to his management regarding any significant change in his condition.

(4) Supervisors must have a union representative present when discussing

[complainant's] job performance and/or when disciplinary action might

result.

(5) In the event of a need for paid sick leave, [complainant] will

initiate the proper paperwork and it will be processed in accordance

with the rules and regulations of the Postal Service and the FMLA.

(6) In the event [complainant] experiences a panic attack he can go to

[Ms. H's] office to rest to cry and to regain his composure, to talk

with supportive coworkers or make phone calls to obtain personal or

professional support.

(7) When my supervisor is approving the allowable time for me to

perform my job duties the supervisor will take into consideration

the time required for meetings, training and any other extenuating

circumstances.

(8) [Complainant will be able to call his supervisor by 2:00 pm each

day to request overtime when necessary."

The agreement entered in 2005 addressed leave issues and provided,

in relevant part:

(1) The leave records of [complainant] for January 4, 2005 will be

changed from annual leave to approved sick leave for dependent care.

The adjustment will be submitted immediately to the Postal Date Center.

(2) To hopefully ensure that [complainant's] leave is properly applied in

the future, Supervisor [C] will make weekly checks of the leave records

. . . .

(3) If an error in the leave type is identified by [complainant] he will

notify [Supervisor C] and/or [complainant's] brother for any appropriate

adjustments.

By letter to the agency dated February 12, 2008, complainant alleged

that the agency was in breach of the settlement agreements. Further,

he asserted that the "non-compliance of these contracts contributes to

ongoing harassment of and failure to accommodate [him]." With respect

to the 1999 and 2000 agreements, complainant stated that the breach

"has been ongoing at least since October 21, 2001 when notice of breach

was hand delivered by me to the Atlanta district EEO Office." He stated

that he never received a response to his October notice.

In its April 3, 2008 decision, the agency concluded that no breach

occurred. The agency reasoned that, due to complainant's extensive

experience with the EEO process, complainant knew or should have known

of his appeal rights once he notified the Atlanta office back in October

2001. Moreover, the agency found that the issues of non-compliance,

ongoing harassment and failure to accommodate have all been addressed.

Citing five specific cases1, the agency noted that one case went to a

hearing while others were settled. Addressing the alleged non-compliance,

the agency stated that management at complainant's facility viewed tapes

and materials, provided by complainant's brother and the Accommodation

Network, regarding OCD. In support of its conclusion, the agency referred

to an affidavit from Responsible Management Official - A (hereinafter

"RMO-A"). RMO-A attested that when she arrived at the facility, she was

made aware of complainant's OCD. RMO-C, who also worked at the facility,

stated that management was required to watch a film on OCD, and that

during her time there complainant was permitted to leave the work floor

and go into an office "whenever he needed to get himself together."

As to the leave matters, presented in the 2005 agreement, the agency

explained that adjustments were not required because complainant worked

on January 4, 2005. Complainant was advised to inform his supervisor

if he identifies an error in his leave type.

On appeal, complainant argues that the 1999 agreement has been breached

"since Area Manager [T] was given responsibility of coaching and

monitoring to ensure a successful transition of the [2000] settlement."

In support of his belief, complainant contends that the area manager

stated he would honor the terms of the 2000 agreement, but he would

not revisit the terms of any prior agreement, believing that they were

superseded by the 2000 settlement.

In response, the agency reiterates its belief that it is in compliance

with all agreements. In his appeal, argues the agency, complainant is

attempting to "revisit matters which have been addressed." The agency

requests that the Commission affirm its decision.

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).

As an initial matter, we note that the instant record is complex,

containing documents from numerous complaints that have passed through

various stages of the EEO process. However, we do not find that

complainant has established breach of the settlement agreements entered

in 1999, 2000, and 2005.

With respect to complainant's claims of harassment and failure to

accommodate, the record illustrates that complainant has filed several

complaints which encompass these issues. For example, the record contains

a previous appeal to the Commission, wherein the agency's dismissal for

failure to state a claim was reversed. See Hogan v. United States Postal

Service, EEOC Appeal No. 0120073266 (Sept. 25, 2007). The Commission

determined that complainant was alleging the denial of an accommodation,

and the matter was remanded to the agency for further processing.

See id. In another matter, also alleging the failure to accommodate,

the EEOC Administrative Judge dismissed the matter on the grounds that

complainant had filed a civil action. It is inappropriate for complainant

to raise such claims of harassment and failure to accommodate as part of

his allegations of breach. As the record illustrates, complainant has,

and should, pursue such matters as new and separate EEO complaints.

CONCLUSION

Accordingly, the agency's decision was proper and is hereby AFFIRMED.

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 (S0408)

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 (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

January 23, 2009

__________________

Date

1 Case Nos. 4H-300-0404-00, 4H-300-0103-02, 4H-300-0072-02,

4H-300-0144-02, and 4H-300-0133-03.

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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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