01A22595_r
08-29-2002
Blas L. Alvarado, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Blas L. Alvarado v. United States Postal Service
01A22595
August 29, 2002
.
Blas L. Alvarado,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22595
Agency No. 4G-780-0255-99
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated March 22, 2002, finding that it was in
compliance with the terms of a May 19, 1999 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:
(1) The Station Manager will actively look for possible promotion
positions for [Complainant] that do not require passing the ASP test;
(2) The Station Manager will evaluate [complainant's] current
capabilities and the training needed to fit the proposed position and meet
with [complainant] to inform him of the opportunity. If [complainant]
is interested, will "open the door" for him;
(3) The Station Manager will arrange with the Acting Station Manager to
informally mentor [complainant] to help him qualify for the open position.
Mentoring time must fall within the hour budget of the station;
(4) Once [complainant] is judged as qualified to compete for the
position, will recommend him for promotion. Prior to the closing date
and following the selection process;
(5) The Station Manager will recommend that the ASP test requirement be
waived for [complainant] through the Human Resources Office. The Human
Resources Office will notify [complainant] in writing within 30 days;
(6) The Station Manager will apprise the Acting Station Manager of the
background of the employee who alleged that [complainant] had sexually
harassed her and recommend that the Manager closely monitor her behavior;
(7) The Acting Manager will conduct a counseling session with the
employee making the harassment allegations and will have a union
representative and signers presented;
(8) If the alleging employee becomes disruptive again, she will receive
a letter of reprimand; and
(9) No reprisals will be taken for [complainant] filing these
complaints.
By letter to the agency dated October 16, 1999, complainant alleged
that the agency breached the settlement agreement and requested that
the agency implement its terms. Specifically, complainant claimed that
Acting Station Manager informed him that the Station Manager could not
guarantee any of the agreement terms.
In its February 8, 2000 FAD, the agency found there was no breach of
the May 19, 1999 settlement agreement.
On appeal, the Commission vacated and remanded the agency's decision.
The Commission found that the record did not contain adequate information
to determine whether the agency complied with the settlement agreement.
On remand, the agency was specifically ordered to supplement the record
with evidence showing that the agency has complied with the May 19,
1999 settlement agreement. Alvarado v. United States Postal Service,
EEOC Appeal No. 01A02638 (August 28, 2001).
Following the Commission's August 28, 2001 decision, the agency
supplemented the record with evidence in support of its position that
it was in compliance with the May 19, 1999 settlement agreement.
The agency issued a new final decision on March 22, 2002, which is
the subject of the present appeal, finding that it did not breach the
settlement agreement. The agency referenced affidavits prepared by
agency officials in support of its finding of no breach. For example,
with respect to provisions (1) through (2), the agency found that in a
Station Manager's affidavit, the Station Manager stated that positions
not requiring the ASP test did not come up at a particular time but
he offered complainant an acting supervisor (204-B) position and that
complainant never acted on it. The agency noted that the Station Manager
stated that he then offered complainant an acting supervisor position
at South Texas Medical Center Station which he accepted. Further, the
Station Manager stated that complainant was offered other opportunities
but he would only go on his own terms and declined these opportunities.
As to provisions (3) and (4), the agency found that the Station Manager
asked an Acting Station Manager to act as complainant 's mentor and
that the Acting Station Manager stated that while complainant was used
mainly as a relief, he was getting many opportunities to train as an
acting supervisor; and that complainant never submitted a required PS
Form 991 application for the Station Manager's recommendation.
Regarding provision (5), the agency found that the Station Manager
requested that the ASP coordinator waive the test but was told that it
was not an option according to the National USPS policy on ASP procedures
and could not be honored.
With respect to provisions (6) - (8), the Station Manager stated that
he spoke with the Acting Station Manager in regard to conducting a
counseling session with the identified employee. The agency found that
the Acting Station Manager stated that he counseled the employee several
times on different issues of the same nature and that she had not become
disruptive again.
With respect to provision (9), the agency noted that complainant did
not indicate any reprisal actions against him and further noted that the
Managers testified that there was no adverse action against complainant.
Moreover, the agency stated that complainant recently retired and that
complainant never responded to the agency's two requests for an affidavit
or additional information concerning his allegations of breach.
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 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 indicates that on February 19, 2002, an affidavit request
was mailed via certified mail to complainant for completion concerning
clarification of complainant's allegation of breach. Complainant received
the request on February 20, 2002, and did not respond to the agency's
request. On March 19, 2002, a second request was mailed via certified
mail to complainant and the copy of the certified mail receipt provided
by the agency contained complainant's signature. Complainant failed to
respond to that request also.
On the other hand, the record contains Station Manager and Acting Station
Manager's affidavits dated September 28, 2001, wherein they address the
various provisions of the settlement agreement and articulated the actions
that were taken in compliance with the agreement. Having reviewed the
record in its entirety, the Commission finds that the record does not
support a finding that the agency breached the settlement agreement.
The agency's finding of no settlement breach is proper and 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
August 29, 2002
__________________
Date