0120113559
02-05-2013
Abraham Olvera, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Abraham Olvera,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120113559
Agency No. 4G-780-0059-10
DECISION
On July 22, 2011, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated June 24, 2011, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Labor Custodian at the Agency's Del Mar Station in Laredo, Texas.
On February 9, 2010, Complainant and the Agency entered into a settlement agreement to resolve an EEO claim Complainant filed.1 The settlement agreement provided, in pertinent part, that:
Any alleged breach arising out of the implementation of or compliance with this settlement agreement must be reported in writing to the EEO Office within 30 days of the alleged breach.... [Customer Service Supervisor 1] will not be Mr. Olvera's immediate supervisor. [Customer Service Supervisor 2] will be Mr. Olvera's immediate supervisor, effective immediately.... [Customer Service Supervisor 1] will not have any input in decisions regarding Mr. Olvera's duties, requests for time off, or anything else having to do with Mr. Olvera. Mr. Olvera and [Customer Service Supervisor 1] will have contact with each other in unforeseen emergencies or safety issues. It is further agreed that Mr. Olvera will not be retaliated against...by [Customer Service Supervisor 1].... [Customer Service Supervisor 3] agrees to monitor and enforce this agree[ment].
The record reflects that after the settlement agreement, Customer Service Supervisor 1 continued to make and post the work schedules for Clerks, Retail Associates, and Custodians, including Complainant. For the week of December 11, 2010 through December 17, 2010, Customer Service Supervisor 1 scheduled Complainant to begin work at 6 AM, one hour earlier than his regular schedule. On or about January 8, 2011, a steward notified Customer Service Supervisor 2, Complainant's supervisor, about the change in schedule and asked that Complainant get out of schedule pay. Management agreed to make pay adjustment, but did not enter it into the pay system until March 9, 2011. Complainant received the adjustment in the amount of $38.48 on March 18, 2011.
Complainant believes that Customer Supervisor 1 deliberately "interfered with" his work schedule. Customer Service Supervisor 1 countered he made a typographical error. Complainant contended that management deliberately delayed making his pay adjustment. Customer Service Supervisors 2 and 3 stated the delay on their part was caused by various administrative issues. The record reflects that Customer Service Supervisor 1, who was in a position to quickly make the pay adjustment declined to get involved. He explained that under the settlement agreement he is not permitted to have anything to do with Complainant.
By letter to the Agency postmarked April 11, 2011, Complainant alleged that the Agency breached the settlement agreement, and requested it implement its terms. Specifically, Complainant wrote that the Agency breached the settlement agreement when Customer Service Supervisor 1 interfered with his work schedule and did not personally take action to adjust his pay. Complainant also wrote that the Agency breached the settlement agreement when after he requested to meet with Customer Service Supervisor 3 on February 8, 2011, she did not do so, hence failing to monitor and enforce the settlement agreement.
In its June 24, 2011 FAD, the Agency found that it did not breach the settlement agreement. It recounted a statement that Customer Service Supervisor 1 made a typographical error, and found he abstained from getting involved in the pay adjustment to avoid breaching the settlement agreement. It also found that Complainant did not make a claim with the EEO office claiming breach until April 11, 2011, beyond the 30 day time limit.
ANALYSIS
On appeal, Complainant argues that the Agency has breached the settlement agreement weekly to the present time because Customer Services Supervisor 1 has been in charge of creating his work schedule; and Customer Service Supervisor 3, who was to monitor and enforce the settlement agreement, failed to do so. He also argues that before going to EEO he tried to resolve his breach claim with Customer Service Supervisor 3.
Complainant also reiterates his breach claims. His representative adds that he has heard Customer Service Supervisor 1 summon Complainant over the public address system numerous times for "Floor Supervisor's Stand Up Desk" talks, claiming this was a breach. Complainant now makes an additional breach claim. He contends that on or about April 2012, when Customer Service Supervisor 1 was the current Acting Station Manager, he delegated to an Acting 204-B supervisor the task of asking Complainant and another custodian to wax the floor. Complainant claims this breached the settlement agreement and was harassment. The union took a statement from the Acting 204-B supervisor who stated he never discussed waxing the floors with Customer Services Supervisor 1.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides if the complainant believes that the agency has failed to comply with the terms of a settlement agreement, the complainant shall notify the EEO Director, in writing, of the alleged noncompliance within 30 days of when the complainant knew or should have known of the alleged noncompliance. This time limit was included in the settlement agreement.
Applying the above language, we find that Complainant's April 11, 2011 contact the Agency's EEO Office on his breach claim regarding Customer Service Supervisor 1 scheduling him to start an hour early daily on his work days for the week of December 11, 2010 through December 17, 2010, was untimely. However, Customer Service Supervisor 1 continued making and posting Complainant's work schedule weekly up through at least the time Complainant filed his appeal. Moreover, Customer Service Supervisor 3 was aware of this. Accordingly, Complainant's claim of breach regarding Customer Support Supervisor 1 creating and posting his schedule, and Customer Service Supervisor 3 lack of action on this is timely, from March 12, 2011 onward.
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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 settlement provides that Customer Service Supervisor 1 will not have any input in decisions regarding anything having to do with Complainant, and Customer Service Supervisor 3 would monitor and enforce the settlement agreement. We find that the Customer Services Supervisor 1 making and posting Complainant's work schedule weekly runs contrary to this language.
The Commission has held that a binding settlement agreement requires a contemporaneous meeting of the minds. Lukas v. United States Postal Service, EEOC Appeal No. 0120103165 (Feb. 23, 2012). Here, the parties signed a settlement agreement providing that Customer Service Supervisor 1 would not have any input in decisions having anything to do with Complainant. Despite this language, he continued to make and post Complainant's schedule, and Complainant did not claim this was a breach in of itself for some time. This lack of action by the parties demonstrates a lack of meeting of the minds. Moreover, with Customer Service Supervisor 1 being acting Station Manager, the lack of the meeting of the minds during the creation of the settlement agreement and the related vague contract language creates insurmountable problems with the enforceability of the settlement agreement. For example, any request by the Acting Station Manager for custodial services could be interpreted as a decision involving Complainant since he could be called upon by a subordinate supervisor to perform them, but it is not clear when this would violate the settlement agreement. Due to the vagueness and lack of meeting of the minds, the EEOC determines that the settlement agreement is unenforceable and void.
CONCLUSION
The FAD is REVERSED. The parties February 9, 2010, settlement agreement is void.
ORDER
The Agency shall reinstate Complainant's settled EEO matter from the point processing ceased, in accordance with 29 C.F.R. Part 1614. The Agency shall acknowledge to Complainant that it has reinstated processing of the settled EEO matter within 30 days of the date this decision becomes final. A copy of the Agency's letter to Complainant resuming processing of the settled EEO matter shall be sent to the Compliance Officer referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
February 5, 2013
__________________
Date
1 The settlement agreement also closed a grievance. The Commission does not have jurisdiction over the grievance.
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0120113559
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113559