0120083257
11-12-2008
Brad J. Harmon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Brad J. Harmon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083257
Agency No. 1C401005607
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated July 9, 2008, finding that it was in
compliance with the terms of the October 30, 2007 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.
At the time of the events at issue, complainant was employed by
the agency as a Part-Time Flexible (PTF) mailhandler. The settlement
agreement provided, in pertinent part, that there would be rotation of
jobs for all career hires and casuals, excluding Christmas casuals in
complainant's work unit. In its final decision, the agency indicates
that the jobs included in the rotation were (1) dock and expedited (231)
and (2) Flat Sorter.
By letter to the agency dated June 9, 2008, complainant alleged that the
agency was in breach of the settlement agreement, and requested that the
agency reinstate his complaint. Specifically, complainant alleged that
the agency failed to rotate him on June 7, 2008. Complainant stated
that he was put on "dock/expedite" on May 31, 2008, and then was put
in the same position on the following Saturday, June 7, 2008, instead
of the Flat Sorter, which he should have been assigned to work based on
the rotation.
In its July 9, 2008 FAD, the agency concluded it was not in breach
of the agreement. The agency stated that employees were assigned jobs
based on "employee availability and skill." The agency asserted that
the supervisor in charge on June 7, decided to place a female PTF on
the Flat Sorter because she was able to complete the job independently.
The supervisor alleged that complainant could not work the Flat Sorter
on Saturdays in a timely manner and she did not have someone available
to assist him. Therefore, she acknowledged that she placed him on
dock/expedite out of rotation for these operational reasons.
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, the agency explained that because of circumstances,
complainant was assigned to work the dock/expedite position on June 7
despite the fact that based on the rotation schedule he should have worked
the Flat Sorter. The agency asserts this one time occurrence resulted
from complainant's inability to work the Flat Sorter in a timely manner
by himself, and the fact that no one was available to help him due to
some staffing shortages.
The Commission finds that the agency violated the terms of the settlement
agreement in this instance. The responsible supervisor stated that
she was only assigning work based on "employee availability and skill."
However, in signing the settlement agreement, the agency waived its right
to assign work based solely on that criteria and instead agreed to a
rotation of jobs. There are certainly instances where an exception to
the rotation might be the result of business necessity and not violate
the agreement such as an instance where complainant had to work the
dock/expedite because he was the only employee on the shift trained to do
the job. However, in this instance, the female PTF could have worked the
dock and complainant could have worked the Flat Sorter as the rotation
indicated, but the supervisor assigned outside the rotation because she
preferred the quality of work by the female PTF. If the agency wanted
to place who it considered the best qualified person on a particular job,
it should have negotiated that term in the agreement.
Where, as here, a breach is found, the remedial relief is either
the reinstatement of the complaint for further processing or specific
enforcement of the settlement agreement. If the complaint is reinstated
for further processing, then the parties must be returned to the status
quo at the time that the parties entered into the settlement agreement,
which requires that the complainant return any benefits received pursuant
to the settlement agreement. See, e.g. Amour v. Department of Defense,
EEOC Appeal No. 01965593 (June 24, 1997); Komiskev v. Department of the
Army, EEOC Appeal No. 0119955696 (September 5, 1996).
Accordingly, the agency's finding of no breach is reversed and the matter
is remanded to the agency for further processing pursuant to the following
Order.
ORDER
Within thirty (30) days of the date this decision is final, the agency
shall provide complainant the option in writing of either voiding the
settlement agreement and reinstating his underlying complaint, including
returning to the status quo ante, or accepting the agency's promise
to good faith adherence in the future to the terms of the agreement,
including those related to the rotation of assignments. If complainant
elects to keep the agreement, the agency shall also promptly provide
complainant with any needed training to fully perform in all the
assignments in the rotation.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M0408)
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 (R0408)
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 (Z1008)
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
November 12, 2008
__________________
Date
2
0120083257
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120083257