01a45451
11-23-2004
Don F. Brickley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Don F. Brickley v. United States Postal Service
01A45451
November 23, 2004
.
Don F. Brickley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45451
Agency No. 4-F-956-0077-04
DECISION
Complainant filed a timely appeal with this Commission from an agency
final determination dated July 12, 2004, finding that it complied with
the terms of an April 15, 2004 settlement agreement. The Commission
accepts the appeal. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);
and 29 C.F.R. � 1614.405.
The April 15, 2004 settlement agreement provided, in pertinent part,
that:
[Two named agency officials] will continue testing the insulation on
[complainant's] [postal] vehicle. It will be tested to insure there
are no mechanical or insulation leakage problems.
By letter to the agency dated June 28, 2004, complainant claimed that
the agency breached the above referenced provision, arguing that it
failed to test his vehicle as indicated. In reference to a May 21, 2004
statement by one of the officials, which specified the actions taken by
the agency to comply with the settlement agreement, complainant asserts
that the testing breakdown data provided concerned another vehicle.
Further, regarding a similar May 21, 2004 statement made by the other
official, complainant indicates that there is no information regarding
who performed a "3rd party investigation," referenced in this statement,
and he requests that the official provide him with the results of the
air analysis purportedly conducted.
In its July 12, 2004 final determination, the agency found that the
required analysis of complainant's vehicle has been conducted, but that
the results were not presented to him upon the mistaken belief that
he had retired. The agency informed complainant that the results were
being provided to him along with the final determination. The agency
also noted that the two named officials understood that complainant
believed that something in the vehicle he used caused him "problems."<1>
Also, the agency noted that prior testing had been conducted on the
"vehicles," and that the named agency officials were advised that the
results showed the vehicles to be within the allowed tolerances. Finally,
the agency acknowledged that the test results submitted to complainant
in conjunction with the final determination were not timely, but that
the delay was justified due to the mistaken belief about his retirement.
The agency concluded that it complied with the settlement agreement.
On appeal, complainant argues that after execution of the settlement
agreement on April 15, 2004, the agency did not continue (emphasis in
original) to test his vehicle. Complainant argues that, instead, the
agency presented a breakdown from testing of the components of another
vehicle. Complainant also argues that the agency merely re-presented
results from testing conducted in November 2003. Complainant argues
that the agency's refusal to continue (emphasis in original) testing
his vehicle is a breach of the settlement agreement.
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).
The Commission determines that the above referenced provision requires the
agency to test the insulation in the postal vehicle used by complainant,
and to evaluate the vehicle for mechanical or insulation leakage
problems. The agency indicates that this testing was conducted, and that
the results provided to complainant along with its final determination.
The Commission determines that the results identified by the agency
refer to the May 21, 2004 statements issued by the two named officials.
In one statement, the official makes reference to an enclosed breakdown
of all components in the Long Life Vehicle (LLV) used by complainant,
noting that the review showed no safety or health risk, and that no
further testing was necessary. The second statement indicates that the
"evaluation" of complainant's vehicle was completed, and a third party
investigation determined that there was no health hazard. This statement
also indicated that an independent air analysis was conducted, along
with a review of the "Grumman LLV Specification," again, with no health
hazard being revealed.
After thorough review of the record, we determine that neither the May 21,
2004 statements, nor the referenced breakdown of test results, reflect
when the testing was conducted, i.e., before or after execution of the
settlement agreement. Further, notwithstanding the statement of the
first official to the contrary, there is no objective evidence to confirm
that the testing was conducted on the vehicle(s) used by complainant.
Without this evidence, we cannot conclude that the agency complied with
the settlement agreement. Accordingly, we find that the agency failed
to comply with the settlement agreement, and that the appropriate remedy
in this case is specific enforcement of the above referenced provision.
In conclusion, for the reasons set forth above, we REVERSE the agency's
final determination finding that it complied with the settlement
agreement, and we REMAND the case to the agency to undertake specific
performance, as set forth in the ORDER below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency will conduct tests on the insulation of the vehicle(s) used by
complainant to deliver mail, to evaluate mechanical or insulation leakage
problems, and issue a report to complainant, to include a breakdown of
the results of all tests conducted. The agency will insure that the
test report contains complete data, and that it reflects the date of
testing, identifies who conducted the tests, and clearly identifies
the vehicle(s) tested.
A copy of the test report, and any other pertinent evidence demonstrating
compliance, must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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)
(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 (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 (R0900)
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 (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
November 23, 2004
__________________
Date
1According to the record, complainant was assigned to use a postal vehicle
which he alleged contained dust contaminated with quartz, which caused
him significant respiratory problems, rendering him unable to work.