0120083941
04-29-2010
Cyril Edwards, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Northeast Area), Agency.
Cyril Edwards,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120083941
Agency No. 1B-146-0008-07
DECISION
Complainant filed a timely appeal with this Commission from the agency's
letter of determination dated August 20, 2008, finding that it was in
compliance with the terms of the October 24, 2007 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 settlement agreement provided, in pertinent part, that:
(1) The letter of warning given to [complainant] will be reviewed for
Removal within six months of this meeting October 24, 2007. The removal
of the letter of warning is contingent upon a performance appraisal by
[complainant's] manager of record at that time and [an agency official].
[Complainant] will receive written expectations for his position at the
Rochester Processing & Distribution Center by his manager.
Once [complainant] returns to his position as a Supervisor at
the Logistics and Distribution Center, he will receive written
job expectations by the manager of the Logistics and Distribution
Center.
By letter to the agency dated July 26, 2008, complainant alleged that
the agency breached the settlement agreement and requested that the
agency reinstate his underlying EEO complaint. Specifically, complainant
alleged that the agency failed to conduct a review of his performance,
as provided by the agreement.
In its August 20, 2008 letter of determination, the agency concluded that
it did not breach the settlement agreement. Specifically, the agency
determined that although management had not complied with the agreement
at the time complainant raised his breach claim, the agency subsequently
complied with the agreement when management mailed complainant a copy
of a performance assessment on August 18, 2008, and determined that
complainant's letter of warning would not be removed.
On appeal, complainant contends that the agency did not comply with the
agreement because he did not receive a written list of job expectations.
Complainant further contends that the agency sent him a performance
assessment on August 18, 2008, which was three months late.
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).
In the instant case, the agency agreed to review whether complainant's
letter of warning should be removed within six months of the execution
of the agreement. The agreement further stated that removal of the
letter depended upon a manager's performance appraisal of complainant.
Complainant contends that he did not receive a written list of
job expectations for his new supervisory position. However, in an
investigative affidavit, the Plant Manager stated that complainant's
performance expectations were given to him in December 2007 in Performance
Evaluation System documentation. The record contains a copy of the
Performance Evaluation System job expectations for complainant's position
that the agency maintains were given to complainant. We are persuaded
by the Plant Manager's testimony and the documentary evidence that the
agency provided complainant with job expectations for his position in
or about December 2007.
Complainant further contends that the agency sent him a performance
assessment three months late. The agency concedes that it did not send
complainant his performance assessment until August 18, 2008. However,
we note that the agreement only states that the letter of warning
would be reviewed within six months of the execution of the agreement.
It does not specify when the performance appraisal must be issued or
when a decision on the removal of the letter must be made.
Even if we interpreted the agreement to require that all actions must be
performed within six months of the execution of the agreement, failure
to perform in accordance with deadlines specified in a contract does not
necessarily constitute a breach of contract. The Commission has held that
the failure to satisfy a time frame specified in a settlement agreement
does not prevent a finding of substantial compliance of its terms,
especially when all required actions were subsequently completed. Lazarte
v. Department of the Interior, EEOC Appeal No. 01954274 (April 25, 1996).
In this case, we find that the agency substantially complied with its
obligations under the settlement agreement. For these reasons we do
not find that the agency's late performance constituted a breach such as
warranting further action by this Commission on a breach of settlement
allegation.
If complainant believes the agency's decision with regard to the
assessment of his performance and removal of the Letter of Warning was
in reprisal for his prior EEO activity then he should contact an EEO
Counselor.
CONCLUSION
For the foregoing reasons, the Commission AFFIRMS the agency's finding
of no settlement breach.
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
___4/29/10_______________
Date
2
0120083941
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120083941