Charles Riddle, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 16, 2003
01A33947_r (E.E.O.C. Oct. 16, 2003)

01A33947_r

10-16-2003

Charles Riddle, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Charles Riddle v. United States Postal Service

01A33947

October 16, 2003

.

Charles Riddle,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A33947

Agency No. 4I-640-0045-01

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated March 7, 2003, finding that it was in

compliance with the terms of the March 26, 2001 settlement agreement

into which the parties entered.

The settlement agreement provided, in pertinent part, that:

(1) [Person A] will check the overtime on Quarter 2, 2000,

particularly regarding the 32 hours that [another employee] has over

complainant. [Person A] will then check with station manager [A1]

and supervisor [A2]. If complainant was promised equalization of

overtime hours in the second quarter, he will be compensated for the

time difference;

(2) As of March 26, 2001, no changes have been made in complainant's

route. If changes are to be made, then complainant will be given input

into any proposed changes. But every consideration possible will be

given to complainant's input in making the final determination for the

route; and

(3) Complainant notes that in his mind a change has been made in the

local practice for assigning holiday overtime. There is a difference of

opinion with Person A on the application of the pecking order system.

Person A will sit down with NALC and convey the proper interpretation

of LMOU re: holidays. If any compensation should come due, complainant

will be notified.

By letter to the agency dated April 16, 2001, complainant alleged that

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

the agency specifically implement its terms. Specifically, complainant

alleged that the agency breached provision (2) when it altered his

delivery schedule without affording him the opportunity to provide input.

Further, complainant claimed that provisions (1) and (3) were breached

and that the agency retaliated against him when it issued him a Letter

of Warning on April 9, 2001.

In its June 22, 2001 decision, the agency concluded that it did not breach

provision (2) of the agreement. Complainant appealed the agency's final

decision to the Commission.

The Commission issued a decision on March 28, 2002, finding that

the agency had breached provision (2) of the settlement agreement and

remanded this matter to the agency for further processing. Specifically,

the agency was ordered to redo the change to complainant's delivery

route discussed in the Commission's decision, by affording complainant

an opportunity to offer input regarding the route change. Further,

the agency was ordered to grant complainant input in any route changes

undertaken subsequent to the signing of the settlement agreement as well

as future proposed route changes. With regard to provisions (1) and

(3), the Commission noted that the agency failed to address the alleged

breach of these provisions and remanded this matters to the agency.

The agency was ordered to conduct a supplemental investigation to include

documentary and/or affidavit evidence, to determine whether it complied

with these provisions. Thereafter, the agency was to issue a new final

decision addressing its compliance with provisions (1) and (3).

On March 7, 2003, the agency issued a final decision finding that it is

in compliance with the March 26, 2001 settlement agreement. With regard

to provision (1), the agency stated that complainant had been shorted

32 hours of overtime for Quarter 2 2000 and noted that a PS Form 2240,

Pay Adjustment, was processed for complainant to compensate him for the

32 hours on August 23, 2002.

With regard to provision (2), the agency stated that management did

allow input of complainant on the route adjustment that was done while

complainant was on vacation. The agency stated that when Person A

found out that the route had been changed, she apologized to complainant

and explained the need for the change. The agency noted that Person A

asked complainant if he knew a better way to accomplish what the change

was designed to do but he did not offer any suggestions or solutions.

The agency noted that prior to a route change made in September 2002,

complainant was afforded an explanation of the route changes contemplated

and afforded the opportunity to offer input.

With regard to provision (3), Person A stated that the holiday overtime

issue had been discussed with the union and that the local memorandum

states the order that is to be followed when scheduling for holidays.

Person A noted that complainant brought up the issue with his union

representative and the union informed him that the agency was complying

with the local memorandum.

On appeal, complainant alleges that the agency is in breach of provisions

(2) and (3) of the March 26, 2001 settlement agreement. With regard

to provision (2), complainant states that the agency has not discussed

the change that was made March 26, 2001 since its decision of June 22,

2001. Additionally, complainant claims that another route change was made

in September 2002, which caused parts of the business district being put

on the auxiliary route. Complainant alleges that when this change was

made, it caused his route to be over eight hours. Complainant alleges

that the agency is making changes to his route to harass him. With regard

to provision (3), complainant claims that he and his representative should

have been present at the meeting between the agency and the union so that

past holiday scheduling and other issues could have been pointed out.

Complainant acknowledges that provision (1) of the agreement is settled

and he is not appealing this issue.

The record contains a declaration by Person A dated August 23, 2002.

In this declaration, Person A states that an entire Office City Route

inspection was performed May 13-May 18, 2002. Person A states that

management sat down with all carriers, including complainant, after

the inspection was completed and discussed the Route Adjustment needed

to be done and requested the carriers' input. Person A claims that

complainant did not say anything the entire meeting. Person A notes that

as complainant was leaving, he mentioned certain streets for management

to consider on his route, which Person A claims were considered.

The record also contains an August 29, 2002 electronic mail message from

Person A to Person B, Manager, EEO Dispute Resolution in which Person

A states that after she found out about the March 2001 route change,

she explained to complainant the reasoning for the change and �mentioned

to him that if he can think of a better way, to let [her] know.� Person

A states that complainant did not offer any suggestions.

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 the agency is now in compliance with

provision (2) of the March 26, 2001 settlement agreement. Provision (2)

provided that if changes are to be made to complainant's route, then

complainant will be given input into any proposed changes. We note

that in our previous decision we ordered the agency to redo the change

to complainant's delivery route discussed in our decision, by affording

complainant an opportunity to offer input regarding the route change.

Further, we ordered the agency to grant complainant input in any route

changes undertaken subsequent to the signing of the settlement agreement

as well as future proposed route changes. According to the record,

Person A explained to complainant the reasoning for the March 2001 change

and �mentioned to him that if he can think of a better way, to let [her]

know.� Person A states that complainant did not offer any suggestions.

Upon review, we find that the agency has complied with the Commission's

Order in EEOC Appeal No. 01A14563, by affording complainant an opportunity

to offer input regarding the March 2001 route change.

Further, with regard to complainant's claim that the agency breached

the agreement regarding the September 2002 route change, we find that

complainant failed to show the agency is in breach of provision (2) of

the agreement. The record contains Person A's declaration in which she

states that management sat down with all carriers, including complainant,

after a May 2002 inspection was completed and discussed the Route

Adjustment proposed for September 2002 as a result of this inspection.

Person A stated that management requested the carriers' input on the

proposed changes. According to the declaration, complainant did not say

anything the entire meeting. However, Person A notes that as complainant

was leaving, he mentioned certain streets for management to consider on

his route, which Person A states were considered. Upon review, we find

that complainant was afforded the opportunity to offer input regarding

the proposed route change in September 2002.

With regard to provision (3), we find that complainant has failed to show

that the agency breached this provision. According to provision (3),

Person A will sit down with NALC and convey the proper interpretation

of LMOU re: holidays. The agency states that the holiday overtime

issue had been discussed with union and that the local memorandum

states the pecking order that is to be followed when scheduling for

holidays. Person A noted that complainant brought up the issue with

his union representative and the union informed him that the agency

was complying with the local memorandum. Thus, the record discloses,

and complainant does not dispute, that the meeting between Person A and

the union occurred. Further, despite complainant's claim, we find that

the agreement did not require complainant and/or his representative to

be present at the meeting between management and the union.

Accordingly, the agency's final decision 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 16, 2003

__________________

Date