0120093031
01-07-2010
George A. Madiedo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
George A. Madiedo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120093031
Agency No. 4H330002809
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 15, 2009, finding that it was in
compliance with the terms of the December 17, 2008 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, that:
(1) [Named Station Manager] will attempt to locate a LLV1 for
[complainant]. Should [complainant] locate an available LLV for his use,
[named Station Manager] will approve its use. (2) [Named Station Manager]
will expedite the repair of complainant's van as soon as possible.
In complainant's Pre-Complaint Counseling report dated May 7, 2009,
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 comply with
item 1, in that the Station Manager (SM) has refused to provide him
with an LLV. Complainant maintained that there have been at least three
available LLVs since the creation of the settlement agreement at issue.
In its June 15, 2009 FAD, the agency referenced the SM's affidavit
response to complainant's breach claim. The SM stated that she "made
every attempt to secure an LLV" for complainant's route as stipulated
in the settlement agreement. However, her attempts proved to be
unsuccessful, as there were no LLVs available at any of the other
facilities within the agency's Hialeah Offices. Additionally, the SM
stated that complainant also failed to locate or identify an LLV that
she could approve for complainant's use.
The agency concluded that the settlement agreement did not promise that
complainant would be provided an LLV only that attempts would be made to
secure an available LLV for his use. The agency asserted that because
management did what was promised, the settlement agreement in this matter
has not been breached.
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).
After reviewing the record, the Commission finds that the agency has not
supported its assertion that it did not breach its obligation under the
settlement agreement. While the agency argues that complainant failed
to identify an available LLV for his use, in complainant's Pre-Complaint
Counseling report concerning his breach allegation, he explained that as a
result of route adjustments, many LLVs became available at his facility.
However, according to complainant, the SM elected to reassign those
newly available LLVs to named carriers on other routes. Neither SM's
statement nor the agency's final decision address complainant's claim
that LLVs became available at his facility after the execution of
the settlement agreement but were assigned by SM to other employees,
who complainant specifically named. Without presenting any evidence
rebutting complainant's claims, we conclude that the record contains no
real evidence that the SM made good-faith efforts to secure an LLV for
complainant's route. Therefore, we find that complainant's allegation
of breach concerning item 1 remains unrebutted.
Accordingly, we find that complainant has established that the agency
breached the settlement agreement and we remand his underlying complaint
back to the agency for further processing in accordance with the following
Order.
ORDER
The agency is ordered to resume processing the underlying EEO complaint
resolved by the December 17, 2008 settlement agreement in accordance with
the procedures outlined by 29 C.F.R. � 1614.108 et seq. The agency shall
acknowledge to the complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to complainant a copy of the investigative file
and also shall notify complainant of the appropriate rights within one
hundred fifty (150) calendar days of the date this decision becomes
final, unless the matter is otherwise resolved prior to that time.
If the complainant requests a final decision without a hearing, the
agency shall issue a final decision within sixty (60) days of receipt
of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M1208)
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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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
January 7, 2010
__________________
Date
1 A LLV (Long Life Vehicle) is a type of postal delivery van.
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0120093031
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093031