0120073250
11-15-2007
Howard F. Snatchko, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Howard F. Snatchko, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073250
Agency No. 1C-195-0001-05
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated July 18, 2007, finding that it was
in compliance with the terms of the March 21, 2007 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, at term 6, that:
meetings to discuss these [settlement agreement] promises and
any other work related issues arising will be held between
Sonny [complainant]/M.W. [supervisor]/C.B. and B.M. [managers].
These will take place as schedules permit w/i [within] 30, 60
and 90 days of this agreement. Meetings following this initial
set of meetings will/can be scheduled at the decision/discretion
of the participants.
In summary, the remaining settlement provisions were for management to
review complainant's concerns about privacy, confidentiality, assignments,
and any work performance issues not being handled professionally;
management not gossiping about complainant's medical, family, or personal
matters; complainant and his supervisor trying to develop a professional
relationship; complainant addressing his concerns with his supervisor,
or if he felt uncomfortable doing so, there being an open door policy with
managers C.B. and B.M.; management reviewing the need to provide and train
as necessary the supervisor in the areas of skills and self-development;
and that training opportunities for complainant could be discussed at
the above 30/60/90 day meetings.
By letter to the agency dated May 29, 2007, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency failed to hold the 30 day interval
meetings, as agreed. Complainant alleged that there was no 30 or 60 day
meetings, give or take a week before or after, with his supervisor and
the two postal managers. Complainant asked that EEO case 1C-171-0009-07,
which was closed by the settlement agreement, be reinstated.
In its July 18, 2007 FAD, the agency conceded that the 30 and 60 day
meetings did not occur. Without specific reference to term 6, the FAD
represented that the supervisor asked complainant three times in April and
May 2007 how things were, and he indicated fine. It indicated that C.B
stated he did not meet complainant since the settlement agreement, and
complainant did not approach him with any settlement agreement related
concerns. The FAD further indicated that B.M. spoke to complainant
once two weeks after the settlement agreement, that complainant replied
things with his supervisor improved somewhat, and complainant did not
contact B.M. with any concerns. With specific regard to term 6, the
FAD represented that B.M. understood the 30, 60, 90 day meetings to
be optional as needed, based on availability of all parties and their
need to talk, with the timeframes being a guide. The FAD indicated
that C.B. explained that everyone involved had busy schedules. The FAD
concluded that the intent of term 6 was to address problems complainant
was having with his supervisor, that complainant did not raise such
with management; and with people being busy there was little room to
schedule meetings. According to the FAD, managers held a meeting with
complainant on June 11, 2007, to discuss any issues he may have.
On appeal, complainant argues that the agency simply ignored term
6 until he submitted his notice of breach. Complainant avers that
likewise, the promise to review training opportunities with him at the
meetings was also ignored. He avers that after his notice of breach,
the agency hastily arranged an 81 day meeting, but it refused to allow
him to raise his ongoing issues with his supervisor. Referring to
the term 6 provision that the parties would discuss the settlement
agreement promises at the 30/60/90 day meetings, which were not held,
complainant avers that the agency did not discuss settlement agreement
compliance with him. On appeal, complainant requests that his complaint
be reinstated. In reply to the appeal, the agency refers to its FAD.
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 agreed there would be meetings to
discuss the settlement agreement promises and any other work related
issues arising between Sonny [complainant]/M.W. [supervisor]/C.B. and
B.M. [managers] at 30/60/90 days after the agreement, as schedules
permitted. While the FAD found that schedules were tight, the
record does not show any attempt to schedule such meetings until after
complainant alleged breach. Further, the meetings were not contingent
on complainant requesting them. We agree with the complainant that the
agency simply ignored term 6 of the settlement agreement, and with it,
the term that training opportunities would be discussed at such meetings.
Accordingly, we find that the agency breached the settlement agreement.
Complainant has not shown that other terms were breached.
We decline, however, to reinstate case 1C-171-0009-07. Instead, we use
our discretion to order that the settlement agreement be implemented.
29 C.F.R. � 1614.504(a). We note that after complainant submitted his
notice of breach, the agency attempted to comply by "hastily" holding
a meeting. While complainant asserts the content of the meeting was
not conducted in accordance with the terms of the settlement agreement,
having the meeting shows an attempt to comply. Further, the record does
not show it is too late to comply with the settlement agreement, e.g.,
that complainant works elsewhere or has different supervision/management.
Accordingly, the agency shall comply with the order below.
ORDER
The agency is ordered to take the following remedial action:
Within 30 days after receipt of this decision, the agency shall
conduct meetings between Sonny [complainant]/M.W. [supervisor]/C.B. and
B.M. [managers] to discuss the settlement agreement promises and any
other work related issues (including ongoing problems complainant may be
having with his supervisor), as well as discussing training opportunities
for complainant.
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
If complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), he/she may be 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
November 15, 2007
__________________
Date
2
0120073250
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120073250