0120123178
01-25-2013
John J. Platt, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
John J. Platt,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120123178
Agency No. 4B-018-0092-08
DECISION
On August 4, 2012, Complainant filed an appeal from the Agency's July 30, 2012 final decision finding that it was in compliance with the terms of an August 24, 2011 settlement agreement.
BACKGROUND
During the period at issue, Complainant was a Custodian at the Agency's Worcester Post Office in Worcester, Massachusetts.
On August 24, 2011, Complainant and the Agency entered into a settlement agreement to resolve a matter that had been pursued in the EEO complaint process. The settlement agreement provided, in pertinent part, that:
2.f. The Agency shall grant to Complainant the use of up to twelve weeks (12) of protected sick leave and/or protected annual leave and/or sick leave - leave without pay ("LWOP") during the one (1) year following the date of the execution of this Agreement, subject to the provisions of this paragraph. This leave shall be used to cover absences related to Complainant's spinal cord and/or neck conditions. Complainant shall adhere to all applicable regulations relative to the use of leave pursuant to this paragraph, including the provision of medical documentation to support said leave pursuant to ELM Section 513.36 except that the Agency agrees that it shall only require Complainant to provide medical documentation to support use of said leave while this paragraph is in effect to the extent that the Agency would have a right to request such medical documentation if Complainant were deemed to have FMLA protection approved for 7 episodes per month, lasting one (1) hour to five (5) days per episode...1
By PS Form 2564-A "Information for Pre-Complaint Counseling" dated June 18, 2012, Complainant alleged that he was subjected to harassment and a hostile work environment when on June 5 and 6, 2012, his supervisor gave him an official discussion regarding his attendance.
Complainant further alleged that his supervisor issued him a letter dated June 11, 2012 concerning the official discussions. Moreover, Complainant stated "the above three [incidents] show a pattern of ongoing and continued hostile environment and harassment taken toward me and also in retaliation for my previous EEO complaints."
On July 30, 2012, the Agency issued a final decision notifying Complainant that the matter he had raised, referenced above, would be treated as a claim of breach of provision 2.f. of the August 24, 2011 settlement agreement, discussed above.
The Agency found that it had complied with the August 24, 2011 settlement agreement, and provided Complainant with appeal rights to the Commission. Specifically, the Agency stated that an inquiry had been conducted concerning Complainant's breach claim. The Agency stated that on July 19, 2012, Complainant's supervisor issued Complainant a notice rescinding the official discussions. The Agency determined that because an official discussion in question had been rescinded, it was unnecessary to address whether the Agency violated provision 2.f. of the August 24, 2011 agreement. Therefore, the Agency stated that it was in compliance of the agreement.
Complainant, on appeal, argues that his absences cited by his supervisor "in the two discussions he gave the Complainant, were absences under this part of the SA as all of his absences were related to his spinal cord injury...of important note is the fact that not only does the Agency refuse to rescind the Complainant's second discussion, it refuses to accept responsibility for the acts of issuing two discriminatory discussions to the Complainant which are clearly in violation of the Complainants SA...The Agency lack of action herein is making a mockery out of the EEO process and cannot be tolerated."
The Agency filed timely comments in opposition to Complainant's appeal, requesting the Commission to affirm its final decision. Specifically, the Agency restates its argument that it complied with the instant settlement agreement.
The Agency also asserts that in regard to Complainant's June 6, 2012 EEO contact relating to separate allegations, Complainant was notified that on August 3, 2012, a formal complaint (identified as Agency Case No. 4B-020-0053-12) was amended to include his allegation that he raised in his PS Form 2564-A (the official discussions he received in May 2012 were retaliatory and created a hostile work environment). The Agency states that according to the records, Agency Case No. 4B-020-0053-12 is currently being investigated.
ANALYSIS AND FINDINGS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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).
As a preliminary matter, the Commission determines that the record reflects that Complainant is expressly claiming breach of provision 2f the August 24, 2011 settlement agreement. Provision 2f provides for an affirmative obligation of the Agency to grant up to twelve weeks of leave for a one-year period, to cover absences related to spinal cord and/or neck conditions. The record reflects that Complainant has asserted that two separate discussions were issued even though all of his absences were purportedly related to a spinal cord injury.
The record in this case contains insufficient evidence for us to determine whether a breach of provision 2f has occurred. We note, for example, that the Agency's letter of determination finding no breach is predicated upon statements from Complainant's supervisor. We note that the record contains a copy of the supervisor's memorandum dated July 19, 2012 rescinding the May 30, 2012 official discussion. However, the record contains no affidavit from the supervisor indicating that he purportedly fulfilled the obligations under the terms of the settlement agreement by rescinding the June 5 and 6, 2012 official discussions concerning Complainant's attendance, and a letter dated June 11, 2012 concerning the official discussions. Given this lack of evidence, we are unable to ascertain whether the Agency complied with the settlement agreement. Accordingly, the Agency's finding of no breach of provision 2.f. of the August 24, 2011 settlement agreement is REVERSED. This matter is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to take the following action:
The Agency shall supplement the record with evidence clearly showing that it has complied with provision 2.f. of the August 24, 2011 settlement agreement. The supplementation of the record shall include any documentation, such as an affidavit from Complainant's supervisor indicating whether he rescinded the June 5 and 6, 2012 official discussions concerning his attendance, and the June 11, 2012 letter concerning the official discussions following the execution of the settlement agreement. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall issue a new decision concerning whether it breached the February 28, 2011 settlement agreement.
A copy of the Agency's new decision must be sent to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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 (R0610)
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 (Z0610)
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 25, 2013
__________________
Date
1 The settlement agreement also provides for the Agency to restore eighty hours of annual leave to Complainant; in order to prevent Complainant's enrollment in Federal Employees Health Benefits coverage from terminating, the Agency would allow Complainant to use eight (8) hours of annual leave per pay period; pay Complainant in the amount of $40,000 in compensatory damages; to rescind any discipline in which is in Complainant's record as of the date of the signing of the instant agreement and expunge it from the record; and to place Complainant into a particular bid position with the hours of 1530 to 2400 and Sunday/Monday days off, provided that Complainant has submitted updated medical documentation. These provisions are not at issue in the instant appeal.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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