Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Aug 15, 2013

0120121545 (E.E.O.C. Aug. 15, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.

Appeal No. 0120121545

Agency No. 4F-940-0170-09

DECISION

Complainant filed an appeal with this Commission from a final decision by the Agency dated
January 23, 2012, finding that it was in compliance with the terms of the settlement agreement
into which the parties entered. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.
BACKGROUND

Complainant and the Agency entered into a settlement agreement on October 21, 2009, which
provided, in pertinent part, that:

(1) The Counselee agrees that upon the posting of the bids for the positions within
the South San Francisco Post Office, including the Carrier Annex, he will put in
for a bidded position or positions.

(2) Upon the Counselee putting in for the bids projected for opening on or sometime
after November 1, 2009, based on the retirement of three individuals within the
South San Francisco Post Office, including the Carrier Annex, the above-named
management official, [Person A] agrees that in accordance with the established
bid procedure, he will give the Counselee full consideration for the bids the
Counselee puts in for.

(3) The Counselee understands that he is not guaranteed a bidded position and that
the consideration is offered is contingent upon the retirement of three (3)
employees in the South San Francisco Post Office, including the Carrier Annex.

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(4) The Agency further agrees that, upon the Counselee submitting his request for
reimbursement for travel through the E-Travel system for mileage traveled to
the Dubugue Retail Store (one-way) for a total of 2.0 miles per incident it will
reimburse the Counselee for such travel for the time period beginning March 1,
2009 through August 31, 2009.

By letter to the Agency dated November 7, 2011, Complainant alleged that the Agency was in
breach of the settlement agreement, and requested that the Agency specifically implement its
terms. Specifically, Complainant stated that pursuant to the October 21, 2009 agreement, he
was awarded a “Caller Holdouts” bid. He noted that in October 2010, the South San
Francisco Station transferred to the San Bruno Station. Complainant stated thereafter, Person
B advised Person A to abolish his position. Complainant noted that on November 4, 2011, he
was given a 60-Day Employee Notification-Involuntary Reassignment dated November 2,
2011, by Person A. Complainant alleged that this 60-Day Employee Notification is in breach
of the October 21, 2009 settlement agreement.

In a subsequent letter dated November 14, 2011, Complainant reiterated his breach claims and
stated that he wanted to keep the “Caller Holdouts” bid position that was agreed to in the
October 21, 2009 settlement agreement. In addition, Complainant claimed that his bid position
was abolished because management did not want their customers to be greeted by a “Black”
face. The record reveals Complainant also requested pre-complaint counseling under PRE-
003007-2012 regarding a claim that he was subjected to discrimination based on race (African-
American) when on November 4, 2011, his “Caller Holdouts” bid position was taken away
from him without cause.

In its January 23, 2012 final decision, the Agency concluded that it complied with the terms of
the October 21, 2009 settlement agreement. The Agency noted that Person A stated that there
were 12 clerks from the South San Francisco Post Office that received the same 60-Day
Employee Notification letter that Complainant received. The Agency noted that Person A
indicated that 12 bids or positions were abolished due to the closure of the South San Francisco
Carrier Annex on October 23, 2010, as a result of the Delivery Unit Optimization between the
South San Francisco Post Office and the San Bruno Post Office. The Agency noted that
Person A stated that Complainant is currently on detail at the San Bruno Post Office
performing the same tasks he did at the South San Francisco Carrier Annex.

In addition, the Agency noted that Complainant never submitted a request for reimbursement
via the E-Travel system for mileage traveled to the Dubugue Retail Store for the time period
beginning March 1, 2009, through August 31, 2009, pursuant to provision (4) of the settlement
agreement. Thus, the Agency stated that management was unable to reimburse Complainant
for mileage.
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ANALYSIS AND FINDINGS

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).

In the present case, we find Complainant failed to show that the Agency breached the terms of
the October 21, 2009 settlement agreement. Under the agreement, the Agency agreed that if
positions were posted within the South San Francisco Post Office, and Complainant put in a
bid for one of those position(s), then Person A would give Complainant full consideration for
the bids for which he applied. The agreement specified that Complainant was not guaranteed a
bid position and that the consideration was contingent upon the retirement of three employees
in the South San Francisco Post Office, including the Carrier Annex.

Complainant stated that he was awarded a “Caller Holdouts” bid in accordance with the terms
of the settlement agreement. He now claims that the loss of the “Caller Holdouts” position
constituted a breach of the settlement agreement. However, we note the settlement agreement
did not guarantee Complainant would be given any specific position. Rather, the agreement
stated that Complainant at most would be given consideration for a bid position. Thus, we find
Complainant’s loss of the “Caller Holdouts” position does not constitute a breach of the
October 21, 2009 settlement agreement.

Moreover, we note that according to provision (4) of the October 21, 2009 settlement
agreement, upon Complainant’s submission of his request for reimbursement for travel through
the E-Travel system for mileage traveled to the Dubugue Retail Store (one-way) for a total of
2.0 miles per incident, the Agency agreed to reimburse Complainant for such travel for the
time period beginning March 1, 2009 through August 31, 2009. We note that the Agency’s
reimbursement for travel was contingent on Complainant’s submission for a request for
reimbursement. The Agency noted, without dispute from Complainant, that Complainant
failed to submit a request for reimbursement via the E-Travel system for mileage traveled to
the Dubugue Retail Store for the time period beginning March 1, 2009, through August 31,
2009. Thus, we find the Agency did not breach provision (4) of the agreement.
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CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

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

(S0610)
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
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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

August 15, 2013
Date