Carlos J. Quinn, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 9, 2003
01A33912_r (E.E.O.C. Oct. 9, 2003)

01A33912_r

10-09-2003

Carlos J. Quinn, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Carlos J. Quinn v. United States Postal Service

01A33912

October 9, 2003

.

Carlos J. Quinn,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A33912

Agency No. 1-H-336-0048-02

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated May 22, 2003, finding that it was in

compliance with the terms of the January 11, 2002 settlement agreement

into which the parties entered.

The settlement agreement provided, in pertinent part, that:

(1) A memo will be sent to all three tours to extend the straight back

chairs in 030 to be placed to the first four cases in each row.

(2) A service talk will be given to make sure employees know these chairs

are for employees who have provided documentation for use of these chairs.

(3) [Person A] will make a good faith effort to order 12 chairs that

are condu[c]ive to perform work at the 030 case.

By letter to the agency dated April 10, 2003, complainant alleged that

the agency was in breach of the settlement agreement, and requested that

his complaint be reinstated Specifically, complainant alleged that

when he clocks in for work, many times the first four cases in a row

are taken and not filled with employees who use straight back chairs.

Complainant states that on March 12, 2003, employees not using straight

back chairs were sitting in the first four seats in 030. Additionally,

complainant stated that Person A has not ordered 12 chairs for 030 to stay

just in that area. Complainant claims that he has had to walk down to

the box section to find a chair because there were none available in 030.

Further, complainant states that he is being discriminated against due

to his disability because he is not allowed to sit in any location within

030 as other employees who sit on rest bars.

In its May 22, 2003 decision, the agency concluded that it did not

breach the agreement. The agency responded that all tours received a

service talk regarding the use of straight back chairs. The agency

stated that a copy of the talk is not available, but notes that the

talk was issued again on March 24, 2003. The agency acknowledged,

however, that perhaps not all supervisors have followed this procedure.

Further, the agency stated that Person A did make a �good faith effort� to

purchase new chairs. The agency claimed that due to budget constraints,

only six of twelve chairs were purchased. Finally, the agency stated

that the issue concerning placement of chairs was addressed in a step

3 grievance decision dated December 17, 2001. The agency noted that

the grievance decision regarding the placement of chairs was denied.

The agency concluded that management will address the issue concerning

who, due to medical limitations, requires the use of a chair. Management

stated that they will again issue a service talk regarding the use of

chairs and will consider a review of its policy on placement of chairs,

even though it is not a contractual issue.

On appeal, complainant states that management did not address the use

of straight back chairs in 2001 or 2002. Complainant acknowledges that

he did receive a service talk in 2003 and signed for the packet along

with everyone else who received the service talk. With regard to issue

(2), complainant claims that Person A did not make a good faith effort

to get new chairs. Complainant argues that budget constraints should

not discourage the agency from getting new chairs for employees who have

special needs. Further, complainant notes that the settlement agreement

was signed on January 11, 2001, and chairs were not purchased until

February 2003.<1> Finally, complainant states that the provisions at issue

were not addressed in a step 3 grievance proceeding. Complainant notes

that the grievance at issue was not his grievance and not binding on

all employees.

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).

In the present case, we find that complainant has failed to show

non-compliance with provision (1) of the January 11, 2002 agreement.

Provision (1) of the agreement provided that a memo would be sent to all

three tours to extend the straight back chairs in 030 to be placed to

the first four cases in each row. Although the agency claimed that the

requisite memo was provided prior to complainant's breach claim, we note

the record contains no evidence that this occurred. However, the record

contains a copy of a March 24, 2003, memo from Person A to the supervisors

of all three tours regarding the use of straight back chairs in 030.

This memo instructed all employees to follow the specified guidelines

for straight back chairs. We note that the settlement agreement did not

provide a specific time-frame for the requisite memo to be circulated

to the three tours. In the present case, we find the agency is now in

compliance with provision (1).

According to provision (2), management was to provide a service talk to

ensure that employees know the straight back chairs are for employees

who have provided documentation for the use of these chairs. The agency

claims that a service talk was issued on March 24, 2003. We note that on

appeal, complainant acknowledges that the service talk was given in 2003.

Therefore, we find that the agency is now in compliance with provision

(2).

According to provision (3), Person A was to make a good faith effort to

order twelve chairs that are conducive to perform work at the 030 case.

The agency contends, without dispute from complainant, that six chairs

were ordered in response to the settlement agreement. The agency states

that due to budget restraints the remaining six chairs were not obtained.

We note that the agreement did not require twelve chairs to be purchased

but rather stated that Person A would make a good faith attempt to order

twelve chairs. Despite complainant's statement on appeal, we find that

he has not shown that Person A failed to make a good faith effort to

order twelve chairs conducive to perform work at the 030 case.

Accordingly, the agency's decision finding no breach 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

October 9, 2003

__________________

Date

1Although complainant states that the

settlement agreement at issue was reached January 11, 2001, a review of

the record indicates that the agreement was signed January 11, 2002.