Robert L. Shofler, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 7, 2006
01A63225 (E.E.O.C. Sep. 7, 2006)

01A63225

09-07-2006

Robert L. Shofler, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Robert L. Shofler,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A63225

Agency No. 4E-800-0328-00

DECISION

Complainant filed a timely appeal with this Commission from a letter of

determination by the agency dated April 24, 2006, finding that it was

in compliance with the terms of a March 13, 2003 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 13, 2003 settlement agreement provided, in pertinent part,

that:

9. It is agreed to reduce Complainant's route by one (1) hour total,

office and street time combined.1

The record reflects that complainant filed a formal complaint claiming

that he was the victim of unlawful employment discrimination when:

(1) on July 7, 2005, an EEO settlement agreement dated March 13, 2003,

was breached when management attempted to adjust his route to 1/2 hour

of the proper 1 hour adjustment; and (2) on July 7, 2005, his supervisor

publicly made a statement that if complainant did not like the adjustment

to his route, he should just transfer out of the station.

On September 20, 2005, the agency issued a final decision dismissing

claims (1) and (2) for failure to state a claim. The agency also found

that in regard to claim (1), complainant erred by raising the matter

in a formal complaint rather than using the procedure for processing

breach allegations, as set forth in 29 C.F.R. � 1614.504. On appeal,

the Commission found that the agency improperly dismissed claim (1)

for failure to state a claim. The Commission determined that the agency

should have instead referred this breach claim identified as claim (1)

to the proper EEO management official for processing under 29 C.F.R. �

1614.504. The Commission vacated and remanded the agency's dismissal of

claim (1) but affirmed the agency's dismissal of claim (2). On remand,

the agency was ordered to investigate whether there had been a breach of

the March 13, 2003 settlement agreement (claim (1)). Shofler v. United

States Postal Service, EEOC Appeal No. 01A60253 (March 24, 2006).

On April 24, 2006, the agency issued a letter of determination, which

is the subject of the instant appeal. Therein, the agency found no

breach of provision 9 of the March 13, 2003 settlement agreement.

The agency determined that the record supports a finding that the

Acting Station Manager stated that complainant's route was adjusted

and all approvals were received to reduce the delivers from 208 to 194.

The agency determined that the Acting Station Manager submitted a copy of

the Route Examination Worksheet dated July 14, 2005. The agency further

determined that the record reflects that complainant's supervisor stated

that initially 30 minutes were cut and "then they took the growth portion

off the route for another 30 minutes, which would have been a total of

one hour."

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).

The record in this case contains insufficient evidence for us to

determine whether a breach of provision 9 of the instant settlement

agreement has occurred. Specifically, the Commission determines that

the agency's letter of determination finding no breach is predicated

upon review of the record and statements by the Acting Station Manager

and complainant's supervisor, as discussed above. However, the record

contains no affidavits from The Acting Station Manager or the Supervisor

indicating that the agency fulfilled its obligations under the terms

of the settlement agreement. Given this lack of evidence, we are unable

to ascertain whether the agency complied with the settlement agreement.

The agency's finding of no breach of provision 9 of the March 13, 2003

settlement agreement is VACATED. The matter is REMANDED to the agency

for further processing in accordance with the ORDER below.

ORDER

The agency is ORDERED to take the following action:

The agency shall supplement the record with evidence clearly showing

that it has complied with provision 9 of the settlement agreement.

The supplementation of the record shall include any documentation, such

as an affidavit from the Acting Station Manager and/or the Supervisor

indicating whether management agreed to reduce complainant's route by one

(1) hour total, office and street time combined following the execution

of the settlement agreement. Within thirty (30) calendar days of the

date this decision becomes final, the agency shall issue a new decision

concerning whether it breached the March 13, 2003 settlement agreement.

A copy of the agency's new decision 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

September 7, 2006

__________________

Date

1 The settlement agreement also provides for complainant to be paid a

lump sum of $1,000; that complainant would be credited 80 hours of sick

leave; and that management would honor complainant's medical restrictions

dated February 4, 2003. These provisions are not at issue in the instant

appeal.

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01A63225

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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