01A41117_r
09-10-2004
David Loewenstein, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
David Loewenstein v. United States Postal Service
01A41117
September 10, 2004
.
David Loewenstein,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41117
Agency No. 4A-117-0035-02
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated July 27, 2004, finding that it was in
compliance with the terms of the February 22, 2002 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
A labor-management meeting will occur at least once a month.
By letter dated November 23, 2003, complainant alleged that the agency
was in breach of the settlement agreement.<1> Specifically, complainant
expressed dissatisfaction with management's participation at the Labor
Management Meeting on November 21, 2003. Complainant acknowledged that
he has not required a monthly Labor/Management meeting, but stated that
when meetings do occur he requests management show �a little respect to
the work force.�
In its July 27, 2004 decision, the agency stated that Labor/Management
meetings were held in accordance with the February 22, 2002 agreement.
The agency noted that the Officer-in-Charge (OIC) stated that based
on scheduling difficulties by both sides, the requisite meetings were
held in May, August, November 2003 and January 2004. The agency noted
that complainant stated that he did not require monthly Labor/Management
meetings and in his November 2003 letter, acknowledged that a meeting was
held on November 21, 2003. The agency stated that complainant appears to
be dissatisfied with the way the meetings are being conducted as opposed
to the occurrence of the meetings. The agency stated that neither the
contents of the meetings nor the demeanor of the participants was an
enumerated stipulation contained in the February 22, 2002 agreement.
On appeal, complainant supplies statements from two shop stewards
who were present at the November 21, 2003 meeting stating that the
meeting was different from previous meetings in that management was
intimidating and hostile and noting that there were more management
officials present than in previous meetings. Additionally, complainant
states that he feels the agency is not serious since no attempt was made
by management to hold the requisite meetings until after EEOC's decision.
Complainant also states that the agency continues to retaliate against
him for his past EEO activity.
The record contains a July 27, 2004 statement from the OIC stating that
the requisite Labor/Management meetings occurred between management and
local union representatives in May 2003, August 2003, November 2003, and
January 2004. The OIC states that the �meetings were not held monthly
in accordance with a mutual agreement with the union due to scheduling
difficulties on the part of both management and the union (eg. operational
contingencies; complainant's on again/off again absences; etc.).�
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 present case, we find that complainant has not shown that the
agency breached the terms of the February 22, 2002 agreement. According
to provision (2), a labor-management meeting will occur at least once
a month. The record reveals that labor-management meetings occurred in
May 2003, August 2003, November 2003, and January 2004. Complainant
is not alleging that the requisite labor-management meetings did not
occur monthly. Rather, complainant is claiming that he is dissatisfied
with the tone of the meetings. We note there are no provisions in the
February 22, 2002 agreement governing the content or tone of the meetings.
Accordingly, the agency's final decision finding no breach of the
settlement agreement is AFFIRMED.
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 (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
September 10, 2004
__________________
Date
1Complainant previously filed a claim that
the agency breached provision (2) of the February 22, 2002 settlement
agreement and when the agency did not respond to his breach allegation
he appealed to the Commission. In EEOC Appeal No. 01A30271 (March 24,
2003), the Commission found the agency did not comply with provision
(2) and ordered specific enforcement.