01A43646_r
10-26-2004
Graham H. Overton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Graham H. Overton v. United States Postal Service
01A43646
October 26, 2004
.
Graham H. Overton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43646
Agency No. 1H-304-0002-00
DECISION
Complainant filed an appeal with this Commission from a final decision by
the agency dated October 10, 2002, regarding the terms of the March 15,
2001 settlement agreement into which the parties entered.
The settlement agreement provided, in pertinent part, that:
(1) The Complainant will be offered the next authorized vacant Maintenance
Operations Support Clerk, Level PS-05, position at North Metro, provided
there is no applicable Promotion Eligibility Register.
(2) The Complainant's Seniority date will be established as 9/8/99,
if/when he is assigned according to (1) above.
Previously, by letter to the agency dated October 10, 2002, 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 establish his seniority
date as agreed. The agency issued a decision dated February 28, 2003,
in which the agency found that provision (2) of the settlement agreement
could not be enforced because the settlement agreement violated the
collective bargaining agreement. Complainant appealed that determination.
In Overton v. United States Postal Serv., EEOC Appeal No. 01A31351
(February 10, 2004), the Commission vacated the agency's February 28,
2003 determination. The Commission found that the agency had not provided
evidence regarding the collective bargaining agreement. Overton, EEOC
Appeal No. 01A31351.
The Commission vacated the agency's decision and ordered the agency to
take the following action:
The agency shall, within 30 days of the date this decision becomes
final, issue a new determination (including appeal rights to the
Commission) as to whether the settlement agreement violates a collective
bargaining agreement. The agency shall supplement the record with: the
identified relevant portions of the collective bargaining agreement
that purportedly would be violated by the March 15, 2001 settlement
agreement; an explanation from the management official(s) involved in
the determination as to how those identified provisions of the collective
bargaining agreement were violated by the settlement agreement; and any
documents or records relied upon to support that explanation.
Id.
In its March 18, 2004 decision, from which the instant appeal is taken,
the agency concluded that provision (2) of the settlement agreement
of the March 15, 2001 settlement agreement violated the collective
bargaining agreement. In support of its determination, the agency
identified the National Agreement between the agency and the American
Postal Workers Union (APWU) and submitted for the record, a copy
of �Article 38 Maintenance Craft� section 2F thereof, pertaining to
installation seniority. The agency further submitted the affidavit of
an identified Labor Relations Specialist, dated October 3, 2002, which
details the grievance asserted by the APWU on behalf of another employee.
The Labor Relations Specialist essentially states that the APWU argued
in the grievance that the result of the instant settlement agreement
violated the collective bargaining agreement. The record indicates that
a grievance settlement dated April 16, 2002, resolved the grievance (of a
coworker) so as to change complainant's seniority date from September 8,
1999 (the date specified in provision (2) of the instant EEO settlement
agreement) to August 4, 2001.
On appeal, complainant states that the agency has not complied with our
earlier decision (EEOC Appeal No. 01A31351) and has, instead sent him
the same paperwork that accompanied the agency's initial decision not to
implement the settlement agreement. Complainant adds that his seniority
date has not been changed to conform with the settlement agreement of
March 15, 2001.
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, we find the agency has adequately supported
its determination that provision (2) of the March 15, 2001 settlement
agreement violates the collective bargaining agreement between the APWU
and the agency. We note that complainant has not argued on appeal
that provision (2) of the settlement agreement does not violate the
collective bargaining agreement. Accordingly, complainant is entitled
to reinstatement of his original complaint at the point where processing
previously ceased.
We therefore AFFIRM the agency's determination that provision (2) of
the settlement agreement of March 15, 2001 is unenforceable and that the
settlement agreement is void. Accordingly, we REMAND the settled matter
to the agency for further processing of the settled matter as specified
in the Order herein.
ORDER
The agency shall reinstate the settled matter and resume processing the
matter from the point processing ceased pursuant to 29 C.F.R. Part 1614.
The agency shall, within 30 days of the date this decision becomes
final, notify complainant that it has reinstated the settled complaint.
A copy of the letter to complainant notifying him of reinstatement
of the underlying complaint must be sent to the Compliance Officer
referenced herein.
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 (R0900)
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 (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
October 26, 2004
__________________
Date