01a50003
04-08-2005
Gary E. Weisbrod, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gary E. Weisbrod v. United States Postal Service
01A50003
April 8, 2005
.
Gary E. Weisbrod,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A50003
Agency No. 1K-221-0068-02
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated August 24, 2004, finding that it was
in compliance with the terms of the April 10, 2002 settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part under Section 3 &
4, that:
(3) For each training class offered in paragraphs 4(a) through (f)
stated below, Management Official agrees to offer Counselee the agreed
upon training within eighteen (18) months from the date of the signing
of this agreement subject to course availability. If Counselee is not
available for any reason, Management Official will continue to provide
opportunities/openings to Counselee as classes open up.
(4) Management Official agrees to offer the following training
opportunities to Counselee:
(a) Management Official agrees to provide the necessary pre-requisite
training for Counselee on Cisco Training along with the actual training
on Cisco � so long as it does not fall on Counselee's regularly
scheduled vacation.
In our previous decision, the Commission vacated the agency's decision
finding no breach and remanded the matter for a supplemental investigation
regarding whether the agency scheduled the subject training during
complainant's regularly scheduled vacation time. In addition, the
Commission required the agency to address the other allegations of
breach.<1>
Specifically, complainant alleged that the agency (1) required him
to take an �ET/IT course� that others were not required to take as
a prerequisite to the Cisco course; (2) the training logistics were
insufficient including the fact that the computer he used was removed
from the training room; (3) the training was given during his vacation
time; (4) he was not given adequate time to complete the course due to
the contract limitations; (5) the settlement agreement was supposed to
allow him to take the Cisco course. The Commission's order required
the agency to take any relevant affidavits of knowledgeable individuals
including complainant.
In its August 24, 2004 FAD, the agency concluded that it was not in breach
of the settlement agreement. In particular, the agency contends that the
agency's National Center for Educational Development (NCED) schedules the
training, not the facility which signed onto the settlement agreement.
For this reason, the agency argued that it cannot control whether the
course is offered during complainant's vacation time. The agency further
contends that the class is self-paced and can be spread out over several
months thereby permitting complainant to finish the course at his leisure.
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 O 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 instant case, the agency was required to offer complainant
Cisco training and any prerequisite within 18 months of the date of the
settlement agreement. The parties also agreed that training would not
be scheduled during complainant's regularly scheduled vacation time.
From the terms of the agreement, if the class were offered during
complainant's vacation time such that he was not available, the agency
agreed to provide additional opportunities to complainant to take
the class.
The record reflects that there is no dispute that the prerequisite class
identified as the ET/IT Library, was scheduled during complainant's
vacation time in violation of the settlement agreement.<2> The course
was offered sometime after July 2, 2002 and extended until December 2002.
Complainant's vacation time occurred from July 28, 2002 to August 1,
2002 and from September 20, 2002 to October 1, 2002. The agency also
contends that complainant should have been able to complete the course,
a 220 hour requirement, within that time frame, because it was web-based
and available 24 hours a day, 7 days a week. However, complainant was
only provided 2 hours of duty time per 8 hour shift to take the course.
It was not reasonable to require complainant to take the course during
his off duty time.
Moreover, under the terms of the agreement, the agency was required to
offer the course again if complainant was �unavailable for any reason.�
Thus, if he was not able to finish the course requirements within the
allotted time because he was unavailable, the agency was required to
offer him an additional opportunity to take the course at a later time
within the 18 month period. The agency concedes that complainant was
not able to finish the ET/IT course and there is no evidence that he
was offered any additional opportunity to do so.
Under our regulations, if the Commission determines that the agency is
not in compliance and the noncompliance is not attributable to acts of
the complainant, it may order such compliance or order that the complaint
be reinstated. 29 C.F.R. �1614.504(c). Complainant has requested that
the agency comply with the agreement.
For the reasons stated herein, the Commission reverses the agency's
final decision finding no breach. We remand this matter to the agency
to comply with the Order set forth below.
ORDER (C0900)
The agency is ordered to comply with the settlement agreement within 45
days of the date this order becomes final, as follows:
The agency will comply with paragraph 4 of the Agreement by providing an
additional offering of the �necessary prerequisite training for Counselee
on Cisco training along with the actual training on Cisco� so long as
it does not fall on Counselee's regularly scheduled vacation.�
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (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
April 8, 2005
__________________
Date
1Weisbrod v. United States Postal Service,
EEOC Appeal No. 01A41094 (May 25, 2004).
2Complainant has stated that there was no prerequisite to the Cisco
course, but such was provided for in the parties' settlement agreement
and is being raised in this appeal.