Gary E. Weisbrod, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 8, 2005
01a50003 (E.E.O.C. Apr. 8, 2005)

01a50003

04-08-2005

Gary E. Weisbrod, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Gary E. Weisbrod v. United States Postal Service

01A50003

April 8, 2005

.

Gary E. Weisbrod,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A50003

Agency No. 1K-221-0068-02

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated August 24, 2004, finding that it was

in compliance with the terms of the April 10, 2002 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 under Section 3 &

4, that:

(3) For each training class offered in paragraphs 4(a) through (f)

stated below, Management Official agrees to offer Counselee the agreed

upon training within eighteen (18) months from the date of the signing

of this agreement subject to course availability. If Counselee is not

available for any reason, Management Official will continue to provide

opportunities/openings to Counselee as classes open up.

(4) Management Official agrees to offer the following training

opportunities to Counselee:

(a) Management Official agrees to provide the necessary pre-requisite

training for Counselee on Cisco Training along with the actual training

on Cisco � so long as it does not fall on Counselee's regularly

scheduled vacation.

In our previous decision, the Commission vacated the agency's decision

finding no breach and remanded the matter for a supplemental investigation

regarding whether the agency scheduled the subject training during

complainant's regularly scheduled vacation time. In addition, the

Commission required the agency to address the other allegations of

breach.<1>

Specifically, complainant alleged that the agency (1) required him

to take an �ET/IT course� that others were not required to take as

a prerequisite to the Cisco course; (2) the training logistics were

insufficient including the fact that the computer he used was removed

from the training room; (3) the training was given during his vacation

time; (4) he was not given adequate time to complete the course due to

the contract limitations; (5) the settlement agreement was supposed to

allow him to take the Cisco course. The Commission's order required

the agency to take any relevant affidavits of knowledgeable individuals

including complainant.

In its August 24, 2004 FAD, the agency concluded that it was not in breach

of the settlement agreement. In particular, the agency contends that the

agency's National Center for Educational Development (NCED) schedules the

training, not the facility which signed onto the settlement agreement.

For this reason, the agency argued that it cannot control whether the

course is offered during complainant's vacation time. The agency further

contends that the class is self-paced and can be spread out over several

months thereby permitting complainant to finish the course at his leisure.

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 was required to offer complainant

Cisco training and any prerequisite within 18 months of the date of the

settlement agreement. The parties also agreed that training would not

be scheduled during complainant's regularly scheduled vacation time.

From the terms of the agreement, if the class were offered during

complainant's vacation time such that he was not available, the agency

agreed to provide additional opportunities to complainant to take

the class.

The record reflects that there is no dispute that the prerequisite class

identified as the ET/IT Library, was scheduled during complainant's

vacation time in violation of the settlement agreement.<2> The course

was offered sometime after July 2, 2002 and extended until December 2002.

Complainant's vacation time occurred from July 28, 2002 to August 1,

2002 and from September 20, 2002 to October 1, 2002. The agency also

contends that complainant should have been able to complete the course,

a 220 hour requirement, within that time frame, because it was web-based

and available 24 hours a day, 7 days a week. However, complainant was

only provided 2 hours of duty time per 8 hour shift to take the course.

It was not reasonable to require complainant to take the course during

his off duty time.

Moreover, under the terms of the agreement, the agency was required to

offer the course again if complainant was �unavailable for any reason.�

Thus, if he was not able to finish the course requirements within the

allotted time because he was unavailable, the agency was required to

offer him an additional opportunity to take the course at a later time

within the 18 month period. The agency concedes that complainant was

not able to finish the ET/IT course and there is no evidence that he

was offered any additional opportunity to do so.

Under our regulations, if the Commission determines that the agency is

not in compliance and the noncompliance is not attributable to acts of

the complainant, it may order such compliance or order that the complaint

be reinstated. 29 C.F.R. �1614.504(c). Complainant has requested that

the agency comply with the agreement.

For the reasons stated herein, the Commission reverses the agency's

final decision finding no breach. We remand this matter to the agency

to comply with the Order set forth below.

ORDER (C0900)

The agency is ordered to comply with the settlement agreement within 45

days of the date this order becomes final, as follows:

The agency will comply with paragraph 4 of the Agreement by providing an

additional offering of the �necessary prerequisite training for Counselee

on Cisco training along with the actual training on Cisco� so long as

it does not fall on Counselee's regularly scheduled vacation.�

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation verifying

that the corrective action has been implemented.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

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 (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

April 8, 2005

__________________

Date

1Weisbrod v. United States Postal Service,

EEOC Appeal No. 01A41094 (May 25, 2004).

2Complainant has stated that there was no prerequisite to the Cisco

course, but such was provided for in the parties' settlement agreement

and is being raised in this appeal.