01a03172
07-05-2000
Duane E. Taughinbaugh, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Duane E. Taughinbaugh v. United States Postal Service
01A03172
July 5, 2000
Duane E. Taughinbaugh, )
Complainant, )
)
v. ) Appeal No. 01A03172
) Agency No. 4J-480-0220-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated February 24, 2000, finding that it
was in compliance with the terms of the September 23, 1999 Settlement
Agreement into which the parties entered.<1> See 64 Fed. Reg. 37,644,
37,659, 37,660 (1999)(to be codified and hereinafter referred to
as EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b);
and 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �
1614.405).
The Settlement Agreement provided, in pertinent part, that:
(6)(C) Complainant will be returned to work no later than September
27, 1999. The period between August 28, 1999 and September 27, 1999
will be unpaid.
Complainant will be provided the opportunity to enroll in health benefits
plan, consistent with regulations stated in the ELM � 524.523 during
the open season beginning in November 1999.
Complainant will be provided with the following training materials:
Requisite OTJ Carrier training - 24 hours - with the certified Carrier
Training see attachment Handbook EL-701A.
Training on St. Clair city carrier routes 3, 5, 7, and 8 to consist of
one day each, to include casing, pull-down, and delivery. Training
will be provided within 30 days of complainant's return to work and
prior to his assignment to the routes named.
Complainant will be provided with maps of St.Clair carrier routes 1-8.
The maps shall be clearly marked to indicate the stop points and
designated line of travel of each loop at each park point. The maps
will be readable and legible.
By letter to the agency dated January 15, 2000, 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 failed to: (a) provide him an opportunity to
enroll in the health benefits plan; (b) properly train him on city route
5; (c) provide maps for city routes 2,3,5, and 6; (d) provide the Fleishi
award for retroactive pay for the 1999 year.
In its February 24, 2000 FAD, the agency concluded that the Settlement
Agreement had not been breached. In reaching this conclusion, the agency
stated that it was complainant's responsibility to enroll in the health
benefits plan during the open season beginning in November of 1999.
With regard to allegation (b), the Postmaster stated that complainant
was given all of the necessary training on October 8, 1999. However,
because of �sick calls�, complainant was unable to be trained in the
field on that same day. The agency stated that complainant agreed to
an extension of training and it was rescheduled for November 4, 1999.
However, another unexplained situation arose and complainant could not
be trained on that date either. Since November 15, 1999, complainant
had been off duty. The agency stated that the complainant would be
rescheduled for training upon his return to duty.<2> With regard to
allegation (c), the Postmaster stated that she observed complainant at
the copying machine and that complainant indicated to the Postmaster that
he was making copies of maps. The Postmaster assumed that complainant
was making copies of the maps in question for himself. The agency
stated that upon his return to duty, the Postmaster will provide the
complainant with a copy of the maps. With regard to allegation (d),
the Fleishi agreement reads, in pertinent part, that �in order to be
eligible to receive a cash payment, an hourly employee must be in a pay
status during the pay period immediately prior to the effective date
of the cash payment, i.e., September 19, 1999) (Article 9, Section 3
(C)(1)). The agency stated that complainant was not entitled to the
Fleishi lump sum payment award since complainant was not paid during
the period between August 28 and September 27, 1999.
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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).
With regard to allegation (a), the Settlement Agreement stated that
complainant will be provided the opportunity to enroll in the health
benefits plan during the open season. It did not state that complainant
would automatically be enrolled or that the agency enroll him. Because
the Agreement did not explicitly express this intent, we find that
complainant failed to show how the Agreement was breached in this regard.
As stated by the agency, it was complainant's responsibility to enroll
in the health benefits plan during the open season. With regard to
allegations (b) and (c), the record shows that the agency made efforts to
resolve these issues with complainant in accordance with the Agreement.
However, complainant's absence from duty has made it impossible for
the agency to do so. Moreover, the agency indicates that it has every
intention of completing complainant's training and providing him with
the maps in question upon his return to duty. In light of the agency's
actions and his absence from duty, we find that complainant has failed to
show how allegations (b) and (c) were breached. Finally, with regard
to allegation (d), the Agreement makes no mention of the Fleishi award;
therefore, because the Agreement makes no mention of this award, we find
that the complainant has failed to show how this portion of the Agreement
was breached. Accordingly, we affirm the agency final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 5, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Equal Employment Assistant Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The record does not indicate if complainant has returned to duty as
of the date of this decision.