01a54754_r
12-12-2005
James W. Harrell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James W. Harrell v. United States Postal Service
01A54754
December 12, 2005
.
James W. Harrell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54754
Agency No. 1E-641-0016-04
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated October 12, 2004, which was revised by the
agency on May 27, 2005, finding that it was in compliance with the terms
of a March 18, 2004 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 18, 2004 settlement agreement provided, in pertinent part,
that:
(1) Rules for Group Leader will be followed by both parties;
(2) [Complainant] will request and be given the opportunity for a detail
to a higher level (Supervisor) when the need arises. Necessary training
will be provided in concert with the supervisory position.
(3) Both parties agree to openly discuss issues immediately when any
problems arises re: job duties or differences of any kind.
By letter to the agency dated September 10, 2004, complainant claimed
breach. Specifically, complainant claimed that the agency breached
provision (1) of the settlement agreement when on April 24, 2004, his
Supervisor stopped allowing complainant to assign tasks, when he stopped
placing paperwork in his box.
In its October 12, 2004 Letter of Determination, the agency found no
breach of provision (1). The agency determined that the Supervisor who
signed the agreement, stated that the settlement agreement was honored.
The record reveals that on May 16, 2005, the EEO Office became aware of
a letter that complainant had sent to the Commission claiming that he
was not given an opportunity to move up to a higher level supervisory
position because he was first required to take the timekeeping test in
violation of provision (2) of the settlement agreement.<1>
In its May 27, 2005 Revised Letter of Determination, that is the subject
of the instant appeal, the agency found no breach. Specifically,
the agency determined that the Supervisor who signed the agreement,
stated that the settlement agreement was honored.
On appeal, complainant contends that he was not allowed an opportunity
to move up to a higher level supervisor position because he was told
by the Supervisor "I need to pass a test before I could �pushup'."
Complainant further contends that two identified co-workers were �pushed
up� without taking the requisite test.
In response, the agency argues that in accordance to provision (2),
management completed a PS Form 1723 (Assignment Order) offering
complainant a detail opportunity to �push up� into a vacant T-1
Supervisor, Management Operations (SMO) position effective August 12,
2005. The agency, however, argues that on August 10, 2005, complainant
completed a routing slip stating that he did not wish to �pushup� to
the supervisor level at the time.
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, we find that the agency properly found no breach
of the March 18, 2004 settlement agreement. The record contains an
affidavit from the Supervisor. Therein, the Supervisor stated that
in regard to provision (1), the rules for Group Leaders refer to the
Duties and Responsibilities Section of the Group Leader, Custodial PS-04.
The Supervisor further stated "I do allow [Complainant] to assign tasks
to custodians and laborers when needed, Maintenance Supervisors and
Acting Supervisors also assign work."
Regarding provision (2), the Supervisor stated that in 2001, a new
computer system, Time and Attendance Control (TACS), became effective.
The Supervisor further stated that because timekeeping was the
responsibility of the supervisor, all supervisors were required to learn
the new system and pass the timekeeping examination with at least a score
of 85%. The Supervisor stated that because complainant requested to be
�pushed up� into the higher level supervisor position, he was allowed
to study and take the examination for the Fundamentals of Timekeeping
class on June 13, 2004. The Supervisor stated that because complainant
failed the first test with a score of 60%, he gave complainant another
chance to re-take the test on July 5, 2004. The Supervisor stated that
because complainant failed the second test with a score of 66%, he was
not �pushed up� in the Acting Supervisory position.
With respect to complainant's argument that the two identified co-workers
were �pushed up� without taking the requisite test, the Supervisor stated
that they "too were required to pass the timekeeping exam in order to be
placed in an Acting Supervisor capacity." The Supervisor further stated
that one of the two identified co-workers passed the web-based version
called "the Fundamentals of Timekeeping exam" on December 10, 2004.
The Supervisor stated that the other identified co-worker passed the
TACS Supervisory Training examination on October 11, 2001. Furthermore,
the Supervisor stated that at the time of the signing of the settlement
agreement, complainant was aware that the TACS was an important role of
supervisory responsibilities; and that he and complainant discussed the
requisite training for the higher level supervisor position.
Regarding provision (3), the record reflects that the Supervisor stated
that complainant had not raised any problems to his attention nor had
he offered to discuss any problems openly.
Moreover, the record contains a copy of PS Form 1723 "Assignment Order."
Therein, complainant was provided an opportunity to �push up� into
a vacant T-1 SMO position, effective August 12, 2005. The record
further contains a copy of routing slip signed and dated August 10,
2005, by complainant. Therein, complainant stated "I do not wish to
pushup to supervisor level at this time."
Accordingly, the agency's finding of no breach of the March 18, 2004
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
December 12, 2005
__________________
Date
1The record contains no copy of complainant's letter to the Commission on
an unspecified date, claiming breach of provision (2) of the March 18,
2004 settlement agreement; however, we are able to discern the nature
of the breach claim by a review of the entire record.