Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Feb 13, 2013

0120112438 (E.E.O.C. Feb. 13, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 0120112438

Agency No. 1J-531-0069-09

DECISION

Complainant filed an appeal with this Commission from a final decision by the Agency dated
February 28, 2011, finding that it was in compliance with the terms of the settlement
agreement into which the parties entered. For the following reasons, the Commission
VACATES the Agency’s final decision.

BACKGROUND

On October 21, 2009, Complainant and the Agency entered into a settlement agreement which
provided, in pertinent part, that:

(2) [Person A] agreed to permanently place [Complainant] on Tour one in the 035
operation with a start time of 2200 until 0650 with Saturdays & Sundays off,
effective 10/24/09, as long as 035 is in existence.

By letter to the Agency dated February 15, 2011, Complainant alleged that the Agency was in
breach of the settlement agreement. Specifically, Complainant alleged that the Agency was
forcing him off his Tour 1 assignment with a start time of 2200 until 0650 with Saturdays and
Sundays off, which he obtained as part of the settlement agreement. Complainant explained
the Agency was forcing him to move to a Tour 3 assignment with a start time of 1700 until
0150 with Wednesdays and Thursdays as his off days.

In its February 28, 2011 final decision, the Agency concluded the settlement agreement was
executed; however, it stated the agreement violated the collective bargaining agreement (CBA).
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As a result, the Agency stated the settlement agreement will be null and void. The Agency
stated Complainant’s case will not be returned for further processing.

The Agency noted that Manager B stated that senior management recently determined that
operation 035 would no longer exist on Tour 1. The Agency stated that Manager B indicated
that Complainant is a limited duty employee who works in operation 035. The Agency noted
that limited duty employees who worked operation 035 on Tour 1 were to be moved to Tour 3
with a 1700 start time. The Agency noted that Person B said he was instructed by the Lead
Managers on Tour 3 and Tour 1 to change Complainant’s start time. The Agency stated that
Complainant gave Person B a copy of the subject settlement agreement. The Agency explained
that Person B then spoke with Manager C, Manager D, and the Manager of Labor Relations.
The Agency explained that Person B sought counseling from each of the managers and he
delayed the intended application of the new start time for one week in order to get advice from
the managers and labor relations before Complainant’s start time was changed.

The Agency argued that the October 21, 2009 settlement agreement did not explicitly state how
long Complainant was to remain in the position in question. The Agency claimed that after 16
months, the needs of the Agency changed and as a result, Complainant’s position was
impacted. The Agency stated that if Complainant believed that he should have been provided
with a job until such time as he was terminated from his position, he should have included such
a term in the settlement agreement. The Agency denied Complainant’s breach claim.

On appeal, Complainant notes the Agency does not specify which part of the settlement
agreement violated the CBA. Complainant states that he is partially disabled due to an on the
job injury and can only work on operation 035 due to his disability. He states that if Tour 1 is
no longer running 035 at the Downtown Milwaukee Plant, he would be willing to go to the
Milwaukee Annex. Complainant explains that it is extremely difficult for him to be on Tour 3
and still manage everything at home. Finally, Complainant notes that Person A agreed to
permanently place him on Tour 1 in 035 starting at 2200 until 0650 with Saturday and Sunday
as off days as long as 035 is in existence, and Complainant avers that 035 is still in existence.

ANALYSIS AND FINDINGS

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. Dep’t of Def., 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. Dep’t 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.
U.S. Postal Serv., EEOC Request No. 05910787 (December 2, 1991). This rule states that if
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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 instant case, we are unable to determine whether the Agency has breached provision (2)
of the October 21, 2009 agreement. According to provision (2), the Agency agreed to
permanently place Complainant on Tour one in the 035 operation with a start time of 2200
until 0650 with Saturdays & Sundays off, effective 10/24/09, as long as 035 is in existence.

In Iglesias v. U. S. Postal Serv., EEOC Request No. 0520110503 (March 30, 2012), we
clarified the Commission's principle in Pyles v. U.S. Postal Serv., EEOC Request No.
05920044 (April 22, 1992), that we will examine whether a settlement agreement violates a
relevant CBA before setting it aside. In the present case, the Agency claimed that the
settlement agreement violated the CBA. However, we are unable to determine from the record
if the agreement actually violates the CBA. The record does not contain any copies of the
relevant portions of the CBA. The Agency did not identify which portion of the CBA was
violated by the settlement agreement. The record is devoid of any analysis or evidence of how
the agreement violates the CBA other than the Agency setting forth its final decision that the
agreement violates the CBA. Thus, as set forth herein, we order the Agency to supplement the
record in order to determine whether the settlement agreement violates the CBA.

In addition, the Agency argued that circumstances changed at the Agency and that operation
035 no longer exists on Tour 1. On appeal, Complainant appears to contest that operation 035
no longer exists on Tour 1. From a review of the record, we are unable to determine whether
operation 035 still exists on Tour 1. Specifically, other than the Agency’s assertion in its final
decision that operation 035 no longer exists on Tour 1, we find no evidence was supplied to
show whether operation 035 still exists on Tour 1. On remand, the agency shall supplement the
record with evidence showing whether operation 035 still exists on Tour 1 and if it does not
exist, the date it ceased to exist.

CONCLUSION

Accordingly, we VACATE the Agency's final decision and we REMAND this matter to the
Agency for further processing in accordance with the ORDER herein.

ORDER

Within 60 days from the date this decision becomes final, the Agency shall:

(1) Supplement the record with documentation and any other evidence indicating whether
the settlement agreement violates the relevant CBA. Such evidence shall include a copy
of the relevant portion of the CBA and a statement from a labor relations official
explaining why the settlement agreement violates the CBA.

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(2) Supplement the record with documentation indicating whether operation 035 exists on
Tour 1 and if it does not exist, the date it ceased to exist.

(3) Issue a new final decision indicating whether it breached provision (2) of the settlement
agreement and whether the settlement agreement violates the CBA.

The Agency must send a copy of the new final decision to the Compliance Officer, as
referenced herein.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

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, DC
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

(M0610)
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
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29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614

(EEO MD-110), at 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 (R0610)

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

(Z0610)
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
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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 13, 2013
Date