closed0120112822
10-28-2011
Cody G. Siluk, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Cody G. Siluk,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120112822
Agency No. 4C-430-0004-11
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the Agency dated April 7, 2011, finding that it was in
compliance with the terms of a January 12, 2011 settlement agreement.
See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. §�
�1614.405.
BACKGROUND
During the period at issue, Complainant worked as a Letter Carrier at the
Agency’s Columbus, Ohio facility. Believing that the Agency subjected
him to unlawful discrimination, Complainant contacted an Agency EEO
Counselor to initiate the EEO complaint process.
On January 12, 2011, Complainant and the Agency entered into a settlement
agreement to resolve the matter. The settlement agreement provided,
in pertinent part, that:
(1) There will be a two day street inspection and form 1838C for
one week completed within forty-five days of January 12, 2011.
(2) The station manager and the union will review results of the
inspection within thirty days.
(3) [Complainant] will case his mail in the morning. He will not
curtail mail to p.m. case on an eight hour day.
In February 2011, Complainant submitted correspondence to the Agency
alleging breach of the three provisions of the settlement agreement.
In its April 7, 2011 FAD, the Agency found no breach. Regarding provision
(1), the Agency found that PS Form 1838C-Carrier’s Count of Mail-Letter
Carrier Routes was completed for Complainant’s route from March 14-March
19, 2011. In addition, the Agency found that a two-day street inspection
was conducted on Tuesday, March 15, 2011 and Friday, March 18, 2011.
Regarding provision (2), the Agency found that a meeting was held
on March 8, 2011 to review and discuss the results of the inspection.
The Agency stated that the station manager, union steward, an Operations
Support Specialist and Complainant participated in the meeting.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates that the Agency breached all three
provisions of the settlement agreement. Complainant asserts that the
route inspection was not conducted within the time limits set forth in the
settlement agreement. In addition, Complainant states that the parties
verbally agreed that the route inspection would take place on a Tuesday
and a Thursday; however, Complainant asserts that the route inspection
actually occurred on a Thursday and a Friday. Complainant acknowledges
that there was a meeting to review the results of the inspection on March
28, 2011. However, Complainant states that management did not adjust
his route. Complainant asserts that the Agency is also in breach of
provision (3) of the settlement agreement. Specifically, Complainant
states that a named supervisor has Complainant curtail mail in the
morning and case the mail after he returns.
ANALYSIS
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).
Provisions (1) and (2)
The Agency is in substantial compliance with provisions (1) and (2) of
the settlement agreement. Complainant acknowledges that a two-day street
inspection occurred on March 17-18, 2011 (a Thursday and a Friday).
In addition, the record contains copies of completed PS Form 1838C
for Complainant’s route for March 14-19, 2011. While Complainant
asserts that the Agency actions to complete provision (1) occurred
outside of the timeframes set forth in the agreement (within 45 days of
January 12, 2011), the Commission has found that the failure to satisfy
a timeframe specified in a settlement agreement does not prevent a
finding of substantial compliance of its terms, especially when all
required actions were subsequently completed. Lazarte v. Dep’t of the
Interior, EEOC Appeal No. 01954274 (April 25, 1996)). In the instant
matter, the Agency conducted the inspection just a few weeks outside of
the timeframe set forth in the settlement agreement. While Complainant
asserts that the two-day inspection did not occur on Tuesday and Thursday,
the written settlement agreement did not specify what two days of the
week the inspection needed to take place. Based on the foregoing, we
find that the Agency is in substantial compliance with provision (1)
of the settlement agreement.
Regarding provision (2), Complainant acknowledges that a meeting occurred
to review the results of the inspection on March 28, 2011. The meeting
regarding the results of the inspection was held within thirty days
of the inspection. As set forth above, we acknowledge that the Agency
performed the inspection (provision (1)) several weeks outside of the
timeframe set forth in the agreement; however, we found the Agency to be
in substantial compliance with provision (1). While Complainant asserts
that the Agency did not adjust his route which was the purpose of the
route inspection, the written settlement agreement did not expressly
provide for the Agency to adjust his route. To the extent Complainant
may be alleging that the route inspection was carried out or conducted
in a discriminatory matter, he should contact an EEO Counselor so that
his claims of discrimination may be processed as a separate complaint
of discrimination See 29 C.F.R. § 1614.504(c). Based on the foregoing,
we find that the Agency is in substantial compliance with provision (2)
of the settlement agreement.
Provision (3)
The record reflects that Complainant is also alleging that the Agency is
in breach of provision (3) of the settlement agreement. We note that
the Agency did not address provision (3) in its April 7, 2011 final
decision finding no breach of the settlement agreement. In addition,
we are unable to ascertain from the record whether the Agency is in
compliance with provision (3). Accordingly, we REMAND this matter to
the Agency as set forth in the Order below.
CONCLUSION
Accordingly, we AFFIRM the Agency’s final decision finding no breach
of provisions (1) and (2) of the settlement agreement. However, we
REMAND the matter of whether the Agency is in breach of provision (3)
of the settlement agreement to the Agency for further processing in
accordance with the ORDER below.
ORDER
The Agency shall supplement the record with evidence showing whether it
is compliance with provision (3) of the settlement agreement. Within 30
days from the date this decision becomes final, the Agency shall issue
a new decision with respect to whether it breached provision (3) of the
January 12, 2011 settlement agreement.
A copy of the Agency’s new decision must be sent to the Compliance
Officer as 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), at 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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the Commission, until such time as the Agency
issues its final decision on your complaint. 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
October 28, 2011
Date
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0120112822
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112822