01A21978_r
04-01-2003
Herman Roeben, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Herman Roeben v. United States Postal Service
01A21978
April 1, 2003
.
Herman Roeben,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A21978
Agency No. 4E-870-0075-01
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated January 2, 2002, finding that it was in compliance with the
terms of a June 1, 2001 settlement agreement. 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) Effective 6-1-01 the Altura and Mackland portions of [complainant's]
route will be "handed off" as an adjustment to this route. The following
addresses are what will be removed:
Upper Mackland - 3817-3816
Mackland - 4031-4107
Altura - 4416-4417
By letter to the agency dated November 16, 2001, complainant alleged
that the agency breached the settlement agreement, and requested that
the agency implement its terms. Specifically, complainant alleged that
during a six-day route inspection September 22, 2001 through September 28,
2001, he was required to deliver mail on the streets which were removed
pursuant to the settlement agreement.
In its January 2, 2002 final decision, the agency concluded that
"80% of the time," including September 2001, during the inspection,
complainant volunteered to deliver mail to those streets which were
removed from his route. The agency states that during the six days his
route was being inspected, complainant took his scheduled day off, used
two days of sick leave, and requested one hour of overtime to carry the
"handed-off" portion of his route. The agency found that complainant
was not required to carry mail for the "handed-off" portion of his route
during the entire week of inspection. The agency also indicated that
complainant did not make a request to "hand-off" any portion of his route.
The agency also asserts that during the relevant time period complainant
was on the overtime desired list for his route, which required the
agency to use complainant first for overtime before offering overtime to
another employee. The agency concluded that it had fully complied with
the settlement and that in each instance, complainant was the party who
made the decision to deliver mail on streets which were removed from
his route pursuant to the 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).
In the instant case, the June 1, 2001 agreement provided that certain
streets would be removed from complainant's mail route. Complainant
alleges that during an inspection in September 2001, the agency breached
the agreement by requiring him to deliver mail on the streets which
were purportedly removed from his route pursuant to the settlement.
The agency argues that during the week of the inspection complainant never
made a request to "hand-off" the disputed portion of his route choosing
instead, to carry the mail himself. The agency also states that because
complainant was on the overtime desired list, it was required to offer
complainant overtime before offering overtime to another employee.
In his statement on appeal, complainant indicates that in November
2001, the agency adjusted his route to again include the streets that
were removed in accordance with the June 2001 agreement. In addition,
complainant asserts that he is on the "work assignment only" overtime
list, which would provide him with an opportunity to work overtime
only on his assigned route, thereby excluding those streets which were
previously removed. Contradicting the agency's finding that much of
the time complainant "agreed" to carry mail rather than "hand-off,"
complainant argues that as a letter carrier, he does not have the option
of choosing which assignments he will and will not accept.
Upon review we find that the agency has not presented persuasive evidence
that it complied with the agreement between the parties. In its
determination, the agency found that "80% of the time [complainant]
agreed to carry the hand-off." The agency's conclusion here suggests
that there are other instances in which complainant has not "agreed"
to deliver mail on those streets removed from his route in accordance
with the agreement. In addition, the agency asserts that during the
six-day route inspection in September 2001, complainant failed to request
that any portion of the assignment be "handed-off" to another employee.
As complainant notes on appeal, the settlement agreement established an
adjustment to his route which did not require him to make any additional
requests regarding his route. Rather, the settlement obligated the agency
to ensure that certain streets were removed from complainant's route,
particularly in light of the fact that complainant's formal complaint
alleged that the route as it existed was overburdened and arduous.
Moreover, we find that the agency is not relieved of its obligation
regarding complainant's route assignment simply because complainant
requested the opportunity to work overtime when it was available.
The agency has failed to provide the Commission with persuasive evidence
that it did not breach the agreement when complainant delivered mail on
those streets the agency was required to remove from complainant's route
pursuant to the June 1, 2001 settlement agreement. Moreover, in light
of complainant's claim in his statement on appeal that on November 17,
2001, the agency again adjusted his route to include the streets removed
by the agreement, we find that the agency's determination that it complied
with the settlement was improper.
Therefore, for the reasons set forth above, we find that the agency
breached the settlement agreement and we REVERSE the agency's finding
of compliance in this matter, and we REMAND the case to the agency in
accordance with the ORDER below
.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency is ORDERED to take the following action:
The agency will adjust complainant's delivery route removing the following
streets from his assignment: Upper Mackland 3817 to 3816, Mackland 4031
to 4107, and Altura 4416 to 4417
Documentation of specific enforcement shall 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
April 1, 2003
__________________
Date