01A13041
09-19-2002
Mark A. Chavez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mark A. Chavez v. United States Postal Service
01A13041
9/19/02
.
Mark A. Chavez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13041
Agency No. 1-G-787-0010-00
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated March 26, 2001, finding that it
was in compliance with the terms of the parties' September 25, 2000,
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 the �Supervisor
agrees to protect counselee's right to a fair, safe, and a healthy
workplace where each employee is treated by the supervisor equally,
fairly and with respect.�
On or around February 12, 2001, complainant submitted a letter to
the agency alleging that the above cited language of the settlement
agreement, was breached on January 18, 2001, when he informed his
immediate supervisor (Supervisor #1) that he was leaving work sick and
would like to request family medical leave (FMLA). Upon his return
to work on January 22, 2001, complainant stated that his supervisor
requested that he bring in documentation to support his leave usage on
January 18, 2001. Upon presenting the requested document, complainant
states that he was informed that the Tour III MDO (Supervisor #2)
denied his request and placed him on absence without leave (AWOL).
Complainant stated that the terms of the settlement agreement were also
breached when on January 23, 2001 he was directed to clock off and was
walked off the workroom floor for refusing to follow Supervisor #1 into
the office without union representation. Moreover, complainant alleged
that the settlement agreement was breached when on January 25, and 29,
2001, he was issued preliminary discipline discussions for failure to
follow instruction and two counts of insubordination, respectively.
In its March 26, 2001, response to complainant's breach allegation,
the agency indicated that it did not breach the settlement agreement.
In reaching this finding, the agency noted that Supervisor #1 treated
complainant fairly and that his request for documentation to support
complainant's request for FMLA was consistent with the provisions of its
labor manual. With respect to the preliminary discipline discussions,
the agency noted that complainant failed to follow instructions and was
thus insubordinate.<1>
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 the instant case, the settlement agreement did not innoculate
complainant from future job discussions/disciplinary action, nor exempt
him from the established procedures for leave request. The agreement
merely promised complainant fair, safe and equitable treatment in the
future. Based on our review of the record as a whole, we find that the
actions taken by Supervisors #1 and #2 were in keeping with the terms
of the settlement agreement.
Accordingly, the agency's finding of no breach 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
9/19/02
__________________
Date
1 Responding to complainant's allegations of
discriminatory treatment, Supervisor #1 stated that on January 18, 2001,
complainant was required to work overtime at the completion of his tour.
According to Supervisor #1, it was only then that complainant requested
FMLA. Given the circumstances under which complainant's request for
leave arose, Supervisor #1 stated that he was asked to bring medical
documentation upon his return to work. With respect to the January
23rd incident, Supervisor #1 stated that on the day in question he
saw complainant improperly loading a flat sorter machine (FSM) and
he attempted to show complainant the correct way to load the machine.
Supervisor #1 stated that he tried three times to instruct complainant
on how to load the FSM and complainant's response each time was to tell
him to go somewhere else and leave him alone. In light of complainant's
response, Supervisor #1 stated that he directed complainant to follow
him into the office and complainant refused. It was at this point,
that Supervisor #1 stated that he took complainant off the clock and
escorted him off the workroom floor. Supervisor #1 added that the two
preliminary discipline discussions related to complainant's conduct on
January 18 and January 23rd.