01a43960
03-07-2005
Michael LaFleur, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael LaFleur v. United States Postal Service
01A43960
March 7, 2005
.
Michael LaFleur,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43960
Agency No. 4-H-300-0165-02
DECISION
Complainant filed an appeal with this Commission from an agency final
determination dated January 11, 2005, finding no breach of a May 2,
2002 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 May 2, 2002 settlement agreement provided, in pertinent part, that
the parties agreed to the following changes to complainant's position
(Job #23):
(1) Assignment will be at the Webb Bridge Post Office.
(2) Hours will be changed to 7:30am to 4:30pm, with one hour for lunch.
(3) Level 6 pay will be retained.
(4) Saturday/Sunday non-scheduled days will remain the same.
Job Title (Bulk Mail Technician) will remain the same. .....
The settlement agreement also stated that complainant would �observe the
above assignment until he is the successful bidder on another position.�
By letter to the agency dated January 30, 2003, complainant indicated
that he received written notification the position under the settlement
agreement was abolished, and that he was made an unassigned regular
subject to bid or draft, and would no longer be assigned to bulk mail
duties. Complainant claimed that this was a violation of the settlement
agreement, and requested that the settlement agreement be enforced.
By a follow-up memorandum dated February 11, 2003, the agency notified
complainant of his specific assignment change, i.e., that he was to
begin work as a window clerk at the Webb Bridge Office. By memorandum
dated June 27, 2003, the agency next notified complainant of available
bid positions, and instructed him to make a choice, noting that failure
to do so would result in management placing him in one of the positions.
On July 2, 2003, complainant filed another breach claim with the
EEO Office. Therein, complainant stated, in pertinent part, that the
agency's June 27, 2003 action breached the settlement agreement, and
that he was entitled to a Level 6 position.
By written notice dated July 11, 2003, the agency notified complainant
that he was assigned to Job #1, a Level 5 Distribution/Sales and Service
Associate position, at the Old Milton Parkway Post Office, with the
hours of 9:00am to 6:00pm, and unscheduled days of Wednesday and Sunday.
On March 31, 2004, complainant submitted yet another written breach
claim to the EEO office, requesting the status of his previous breach
claims. Complainant noted that he received no formal response, and
that his telephone inquiries were also without result. On May 25, 2004,
complainant filed the instant appeal, attaching the above referenced
correspondence, noting the agency's failure to respond to his breach
claims.
On January 11, 2005, while the appeal was pending at the Commission,
the agency issued a final determination. In referencing complainant's
January 30, 2003 breach claim, the agency found that its management
properly notified complainant that his position would be abolished;
properly gave him prior notice of his reassignment; and properly
provided him with an opportunity to bid on a preferred assignment.
The agency also noted that the assignment change was due to a change in
operational needs at complainant's work station. Based on these findings,
the agency determined that there was no breach.
In response, complainant disputes that a change in operation needs
resulted in his reassignment, noting that his same position under the
settlement agreement is still "operational," including duty hours.
Complainant argues that the parties agreed that he would encumber this
position until he became the successful bidder on another position, and
asserts that the agency's forcing him to do so (in apparent reference to
the June 27, 2003 notice) was unethical and a violation 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).
In the instant case, we find that complainant's assignment to Job #23,
as amended by the settlement agreement, was not intended by the parties
to be permanent, based on the language that complainant would encumber
this position only until he successfully bid on another. Moreover, the
Commission has held that when a settlement agreement does not contain
a specific term for an assigned position, it is reasonable to assume
that the parties did not intend that the position would last forever.
See Parker v. Department of Defense, EEOC Request No. 05910576 (August
30, 1991).
However, notwithstanding the above, under the circumstances of this
case, we find that the agency breached the settlement agreement when it
reassigned complainant to another position on January 23, 2003. We note
that complainant's assignment to Job #23 under the settlement agreement
was not intended to be permanent; we nonetheless find that the 8 months
the agency permitted him to encumber it was far more brief a period than
contemplated by the terms of the settlement agreement. Additionally,
we also find that the settlement agreement can be reasonably construed as
giving complainant the option of deciding when to bid on another position.
Moreover, we note that the agency claims that a change in operational
needs was the reason for abolishing complainant's position; however,
it provides no evidence to verify this contention. Furthermore, we find
that the agency does not challenge complainant's claim that Job #23 is
still "operational,"at the same facility, with the same duty hours.
Therefore, based on our findings that the settlement agreement must be
reasonably construed as providing complainant with the position at issue
for longer than 8 months, and because the agency provides inadequate
justification for pre-maturely abolishing it, we conclude that the agency
breached the settlement agreement.
As a remedy for the agency's breach, complainant, in various statements,
has asked both that his complainant be reinstated, and that the agency
abide by the terms of the settlement agreement by returning him to the
position at issue. We find that the more appropriate remedy in this
case is specific enforcement of the settlement agreement, requiring the
agency to return complainant to Job #23, as described in the settlement
agreement.
Accordingly, for the reasons set forth above, we REVERSE the agency's
decision finding no breach of the settlement agreement, and we REMAND the
case to the agency for further processing, pursuant to the ORDER below.
ORDER
The agency is ORDERED to take the following action:
1. Within thirty (30) calendar days of the date this decision, the
agency must reinstate complainant to "Job #23," the Level 6 Bulk Mail
Technician position described by the settlement agreement.
A copy of all pertinent documentation verifying the above action 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
March 7, 2005
__________________
Date