01A10210_r
09-11-2002
Daniel J. Day, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Daniel J. Day v. United States Postal Service
01A10210
September 11, 2002
.
Daniel J. Day,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A10210
Agency No. 4E-870-0065-00
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated August 29, 2000, finding that it was in compliance with
the terms of a March 29, 2000 settlement agreement. See 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The March 29, 2000 settlement agreement provided, in pertinent part, that:
[Complainant's supervisor] will evaluate his performance using two counts
within two weeks and will use this as the basis for daily negotiations.
All line items will be properly accounted for, and all mail volume will
be properly recorded;
[Complainant's supervisor] will write up a 2240 pay adjustment from a
Leave Without Pay charge to sick leave, with respect to two incidents
for which complainant received a Leave Without Pay charge;
[Complainant and an agency official] agree to control their tempers and
refrain from any displays of anger. [Complainant's supervisor] agrees
to drop complainant's emergency suspension and make him whole; and
The two Letters of Warning will be rescinded within three months from
date of the agreement if there are no more than two unscheduled absences
within the next three months and providing that complainant always calls
in before 2:30 p.m. if he is not going to be on time.
By letter to the agency dated July 30, 2000, complainant alleged that
the agency breached the settlement agreement. Specifically, complainant
alleged that the agency implemented �none of the terms� of the agreement.
Moreover, complainant contends that he has been subjected to further
discrimination since the agreement, including the retaliatory issuance of
a notice of suspension, which cited two letters of warning that should
have been rescinded and purged from his employee file. Complainant
requests that either the terms of the agreement be implemented or that
his underlying EEO complaint be reinstated.
In its August 29, 2000 agency decision, the agency concluded it complied
with the terms of the agreement. Regarding provision 1, the agency
found that though it did not implement the agreement's terms within the
14-day time period specified, it performed two counts on July 6, 2000
and August 2000. The agency found that complainant suffered no harm
because of this delay. Further, the agency concluded that provision
2's guarantee of a conversion of a Leave Without Pay to sick leave and
a corresponding pay adjustment has been processed. Regarding provision
3, the agency found that the agency rescinded the suspension and made
him whole for any losses. Finally, regarding provision 4, the agency
concluded that the agency rescinded the Letters of Warning. However,
the agency argues that its issuance of a subsequent seven-day suspension
was warranted because complainant failed to call in before 2:30 p.m.,
as agreed by the parties.
On appeal, complainant asserts that the agency issued the seven-day
suspension in retaliation for his EEO activities. Further, complainant
claims that the agency delayed his evaluation and has engaged in a
campaign of harassment against him. Regarding provision 2, complainant
argues that the Leave Without Pay charge has not been changed to sick
leave, as the agency contends. Likewise, complainant contends that
the agency has not removed his emergency suspension, as provided
for in provision 3, nor has his supervisor refrained from engaging
in �disrespectful maltreatment� toward him with �untoward displays of
temper.� Moreover, complainant argues that the first Letter of Warning
remains in management's files, while another Letter of Warning was issued
after the agreement as an excuse to keep the initial Letters of Warnings
in effect.
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).
Provision 1
On appeal, the agency acknowledges that it did not conduct route counts
within the specified time frame in provision 1, but the counts were
conducted on July 6, 2000 and August 1, 2000. The Commission has held
that failure to satisfy a time frame specified in a settlement agreement
does not prevent a finding of substantial compliance, especially when all
required actions were subsequently completed. See Lazarte v. Department
of the Interior, EEOC Appeal No. 01954274 (April 25, 1996). Here,
complainant does not allege that the agency's delay caused him any harm
or loss. Consequently, we find that the agency substantially complied
with provision 1 of the agreement.
Provision 2
The Commission is unable to ascertain whether the agency has complied with
provision 2. The Commission notes that the agreement did not require that
this provision be implemented within a particular time frame. Moreover,
the record indicates that the agency submitted three different PS Forms
2240 to convert complainant's Leave without Pay to sick leave, though
an administrative problem purportedly delayed the enactment of the
change. However, the agency, on appeal, contends that complainant will
be paid for his sick leave within thirty days of its December 8, 2000
appeal statement. Therefore, although the agency indicates that it is in
the process of implementing this provision, there is no evidence in the
record showing that the provision has been complied with by the agency.
Provision 3 (Rescission of suspension)
The Commission is unable to ascertain whether the agency has complied with
this portion of provision 3. Though the agency's final decision asserts
that it has rescinded the suspension, complainant contends in his appeal
statement that this is erroneous. Further, the agency has provided
no documentation of its rescission on appeal, nor has it responded to
complainant's appeal statement that the suspension remains intact.
Provision 4
Regarding the removal of the Letters of Warning, we are unable
to ascertain whether the agency breached provision (4). Complainant
contends that the agency retained the two Letters of Warning against him
in agency files and cited them in a subsequent suspension letter on June
13, 2000. We note that provision 4 conditions the agency's rescission
of the Letters of Warding on complainant calling in to work before 2:30
p.m. if he is late for three months after the execution of the agreement,
as well as not having more than two unscheduled absences. In its final
decision and on appeal, the agency contends that complainant breached
provision 4 when he failed to call in before 2:30 p.m. when late on at
least one occasion. However, we note that there is no documentation
in the record supporting these assertions.
Further, we note that complainant's claims regarding: the issuance
of a Letter of Warning subsequent to the settlement agreement;
ongoing retaliatory harassment; a seven-day suspension; and a
delayed work evaluation are subsequent acts of discrimination
which should be processed as separate, new allegations. Under EEOC
Regulation 29 C.F.R. �1614.504(c), a claim that a subsequent act of
discrimination violates a settlement agreement is properly processed
under 29 C.F.R. �1614.106, not as a breach of the settlement agreement
under �1614.504(c). See Baul v. Department of the Navy, EEOC Request
No. 05940023 (September 2, 1994); Bindal v. Department of Veterans
Affairs, EEOC Request No. 05900225 (August 9, 1990). It appears from the
record that complainant already has availed himself of this option by
contacting an EEO Counselor on the matter of the seven-day suspension.
If complainant has not contacted an EEO Counselor on the remaining
matters, he may wish to likewise contact an EEO Counselor to pursue the
remaining matters as a new complaint.
We also note complainant's contention on appeal that an agency
official breached that portion of provision 3 that prohibits displays
of rage and anger. We determine that this portion of provision 3 is
analogous to provisions in settlement agreements regarding treatment
of employees with �respect and dignity.� The Commission notes that such
provisions lack requisite specificity for enforcement and interpretation.
See Bruns v. United States Postal Service, EEOC Appeal No. 01965395 (June
24, 1997). If complainant wishes to pursue the issue of a supervisor's
purported outbursts against him, complainant is advised to contact an
EEO Counselor thereon.
In summary, we AFFIRM the agency's finding that the agency complied with
provision 1 of the settlement agreement. However, the Commission finds
that the agency's decision finding that it did not breach provisions 2 -
4 of the settlement agreement is VACATED, and we hereby REMAND those
matters to the agency for further processing in accordance with the
ORDER set below.
ORDER
The agency shall supplement the record with:
1. Evidence clearly showing that it has complied with provision 2 of
the settlement agreement by documenting the conversion of complainant's
Leave Without Pay Charge to a sick leave charge, as well as evidence
of the corresponding pay adjustment.
Evidence showing that it has complied with provision 3 of the settlement
agreement by rescinding complainant's emergency suspension, eliminating
the record of its issuance, and making him whole.
Evidence, including affidavits and documents, regarding complainant's
alleged failure to call in to work by 2:30 p.m. when late. The agency
shall supplement the record with evidence that clearly evidences it has
complied with provision 4 of the agreement by rescinding the Letters
of Warning, if the cited condition for such rescission was met.
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall issue a new decision determining whether the
agency breached provisions 2 - 4 of the settlement agreement. A copy
of the agency's new decision must be sent to the Compliance Officer as
referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
September 11, 2002
__________________
Date