0120102284
05-12-2011
Garland D. Lewis, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Western Area), Agency.
Garland D. Lewis,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120102284
Agency No. 4E-800-0570-03
DECISION
Complainant filed a timely appeal with this Commission from a letter of
determination by the Agency dated December 30, 2009, finding that it was
in compliance with the terms of an August 28, 2003 settlement agreement.
See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. §�
�1614.405.
The August 28, 2003 settlement agreement provided, in pertinent part,
that:
C. No communication will occur between the parties [Complainant and
his supervisor, hereinafter referred to as “S1”] unless absolutely
necessary. If necessary, each party will have a witness of their choosing
for that communication to occur.1
By letter to the Agency dated August 30, 2009, Complainant alleged
breach of provision C. Specifically, Complainant alleged that on August
5 and 7, 2009, the Station Manager (SM) along with S1 approached him
at the service window asking him if he would like to work overtime.
Complainant stated that he was not given an opportunity to have a witness
present, which was a violation of the instant settlement agreement.
Complainant further alleged that on October 19, 2009, SM and S1 asked
him if he would work two hours of overtime. Complainant again stated
that he was not given an opportunity to have a witness present which
was a violation of the agreement.
In its December 30, 2009 letter of determination, the Agency found no
breach of provision C. The Agency found that S1 stated that on August 5
and 7, 2009, SM asked her to witness her communication with Complainant
when SM asked Complainant if he would like to work overtime. S1 further
stated that in regard to the October 19, 2009 incident, management of
the Agency’s downtown office deemed it necessary to ask Complainant
to work overtime. S1 stated that Complainant never acknowledged the
request to work overtime, and he did not stay on overtime. Finally,
S1 stated that her communication with Complainant was work-related and
necessary due to operation needs.
The record contains a copy of S1’s affidavit dated November 4, 2009.
Therein, S1 stated that on August 5 and 7, 2009, SM “asked me to witness
her communication with [Complainant]. [Complainant] has filed an EEO on
[SM] and she felt it was necessary to have a witness.” S1 stated that
in regard to the October 19, 2009 incident, “it was deemed necessary
by the managerial staff at the downtown station to call overtime on
[Complainant]. Redress states that if necessary I am able to communicate
with this employee. At the point that I addressed [Complainant], the
Denver Downtown Station was in dire need with box section failure…”
S1 stated that on the same day, two Distribution Clerks were on sick
leave and one Window Clerk was on annual leave. S1 further stated that
other volunteers “were notified that it was mandatory to stay and
work overtime. The time of the request for this overtime volunteer to
stay was 11:00 AM, per the APWU contract a volunteer must be notified
one hour prior to ending tour. [Complainant’s] hours are 4:00-12:30,
the request was made on the workroom floor with relay driver’s,
clerks, and [SM] as witnesses. Based on the urgency of the situation,
it was necessary to request this employee stay. [Complainant] never
acknowledged the request, nor did he stay.”
CONTENTIONS ON APPEAL
On appeal, Complainant argues that [Manger of Downtown Station (M1)]
and [S1] “violated and breached this same order in which this agency
determine that because [M1] apologized then it was okay. Well, it’s
not okay to continue to allow management to breach this settlement
agreement.”
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 instant case, we find that the Agency complied with provision C.
Specifically, we note that in provision C, the parties agreed that there
would be no communication between the Agency and Complainant unless
it was absolutely necessary; and if necessary, each party will have a
witness of their choosing for that communication to occur. We note that
according to S1, she was asked by SM to witness her conversation with
Complainant on August 5 and 7, 2009 because management needed Complainant
to work overtime. We further note that S1 stated that on October 19,
2009, she was instructed to ask Complainant to work overtime due to
operation needs. We find that given the time restraint and operation
needs, there was insufficient time for Complainant to have a witness
present during his conversation with SM and S1. Therefore, we find that
the Agency substantially complied with provision C of the agreement.
Accordingly, the Agency’s finding of no breach of provisions C of the
December 30, 2009 settlement agreement 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), 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 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
May 12, 2011
__________________
Date
1 The record reflects that the settlement agreement also provides
for Complainant and S1 to have no physical contact; and management
will follow all rules and regulations regarding overtime assignments.
These provisions are not at issue in the instant appeal.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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