01A30408_r
09-08-2003
Irvin H. Roeske, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Irvin H. Roeske, Jr. v. United States Postal Service
01A30408
September 8, 2003
.
Irvin H. Roeske, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30408
Agency No. 4I-530-0016-01
DECISION
Complainant appeals to the Commission from the agency's decision dated
September 18, 2002, finding no breach of a settlement agreement.
On April 29, 2002, the parties resolved complainant's complaint by
entering into a settlement agreement which provided, in pertinent part,
that complainant would receive the following:
. . . .
The parties agree that the Complainant's religious beliefs will be
accommodated as follows:
On Fridays that the Complainant is scheduled to work, the Complainant
will be permitted to tender a change of schedule form to permit him to
start work earlier to enable him to be home by sundown. These slips
shall be approved subject to business conditions and operational
efficiency, and management shall make a good faith effort to accommodate
the Complainant in this regard. It is understood that in the summer
months there will be less or no need for this accommodation.
On Saturdays that the Complainant is scheduled to work, he will be
accommodated in the following manner: he will be permitted to request
incidental annual leave or leave without pay (LWOP). If there is a
vacation slot available and he is entitled under the National Agreement
(NA) and the local memorandum of understanding (LMOU) to have the
day off, he shall be permitted to have the day off. Nothing in this
agreement shall permit the Complainant to bypass the NA or LMOU, and any
such request for accommodation shall be consistent with these contracts.
The complainant's request for accommodation when there is no vacation
slot available will be subject to the business needs and operational
efficiency of the Postal Service (i.e., the request for accommodation
can be disapproved based upon business conditions such as personnel
complement, mail volume, etc.)
The Agency is committed to honoring each of the Complainant's requests
for religious accommodation (annual leave or LWOP), within the
confines of the aforementioned agreements and subject to business
conditions and maintaining operational efficiency.
No date for which the Complainant has requested and been approved for
religious accommodation in advance shall be cited in any discipline
against the Complainant. If the Complainant requests accommodation in
advance and his request cannot be granted, the Complainant understands
he will be expected to work as scheduled. Failure to work as scheduled
under these conditions could lead to discipline, up to and including
removal from the Postal Service.
. . . .
By letter to the agency dated July 22, 2002, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency denied every request for Saturday off.
In its decision, the agency concluded that it was not in breach of the
settlement agreement.
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).
Complainant argues that all of his requests for Saturday off were denied.
The settlement agreement, at provision (b), indicates that leave was
subject to business needs and operational efficiency. The agency argues
that, due to business need and operational efficiency, complainant's
requests were denied. Complainant has neither argued nor shown that this
was not the case, nor does complainant show that the agency acted in bad
faith. Complainant has failed to show breach of the settlement agreement.
The agency's decision finding no breach of the settlement agreement
is AFFIRMED.
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
September 8, 2003
__________________
Date