0120121879
08-15-2012
Kevin L. Dupuis, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Kevin L. Dupuis,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120121879
Agency No. 4B028004106
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated February 29, 2012, finding that it was in compliance with the terms of the 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.
BACKGROUND
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On May 17, 2006, Complainant and the Agency entered into a settlement agreement to resolve the matter.
The settlement agreement provided, in pertinent part, that:
(1) All parties agree that [Complainant] will be a part time regular clerk in the Middleboro Post Office with a minimum of 30 hours scheduled as follows: (Sat- 9:30-5:30 1/2 hour lunch - Sun N/S - M-F 2-6:30 pm (no lunch scheduled) ).
(2) All parties agree that Sunday is non-scheduled.
(3) All parties agree that #1 will be effective February 18, 2006.
(4) All parties agree that there will be no window duties assigned to [Complainant's] bid.
(5) Management agrees to pursue the acquisition of Verbex or other appropriate voice recognition software that would allow [Complainant] to distribute mail according to scheme.
(6) Management agrees to provide [Complainant] with additional hours beyond 30 as available within [Complainant's] job description.
By letter to the Agency dated January 27, 2012, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency implement its terms. Specifically, Complainant alleged that in December 2011, the Agency posted five positions and that all five included scheme and window duties. In addition, Complainant stated that on January 25, 2012, he was given a position change notice awarding him another position pending scheme/SSA qualification.
In its February 29, 2012 FAD, the Agency concluded it was not in breach of the agreement. The Agency indicated that the majority of the work being performed by Complainant no longer existed, and that flat mail had moved to another facility. In addition, the Agency stated that Complainant's position was abolished in September 2010 when the automated operation was eliminated at the Middleboro facility. As a result, Complainant became an unassigned regular. However in late 2011, all part-time regular positions were abolished. The Agency acknowledged that Complainant was put into a position where "it appears that [Complainant] will not be able to meet the requirements of that position." The Agency noted it had attempted to schedule Complainant for a meeting with the District Reasonable Accommodation Committee (DRAC) to explore all options to find Complainant productive work within his current medical restrictions.
In response to the Agency's decision, Complainant gives a detailed background on the matter and notes that at the time of filing, he continued to work "substantially the same schedule as contained in the agreement and is assigned the position of Mail Processing Clerk."
ANALYSIS
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).
In the instant case, the Commission notes that the settlement agreement was signed in 2006 and Complainant is alleging a breach over five years later. Further, information in the record indicates that the facility where Complainant was employed has faced several changes. The Commission has held that where an individual bargains for a position without any specific terms as to the length of service, it would be improper to interpret the reasonable intentions of the parties to include employment in that exact position ad infinitum. See Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Papac v. Dep't of Veterans Affairs, EEOC Request No. 05910808 (Dec. 12, 1991); see also Parker v. Dep't of Def., EEOC Request No. 05910576 (Aug. 30, 1991). In addition, the Commission has held that there is no breach of a settlement agreement "where an individual has been assigned to a position pursuant to a settlement agreement, has held the position for a period of time, and then is excised out of the position because of agency downsizing that was not anticipated at the time of the agreement." Gish v. Dep't of the Army, EEOC Appeal No. 01950923 (Aug. 14, 1995).
Under the circumstances of this case, where Complainant held his position granted under the settlement agreement for over five years and circumstances changed, the Commission finds that the Agency is not in breach of the agreement.1
The Agency's decision finding no breach is AFFIRMED.
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), at 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 (S0610)
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 (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
August 15, 2012
__________________
Date
1 Complainant has another appeal pending with the Commission designated as EEOC Appeal No. 0120122363. That appeal deals with claims of hostile work environment and being sent to the DRAC covering a time period up to November 2011. However, the duty to provide reasonable accommodation is ongoing and if Complainant feels he was being denied reasonable accommodation in January 2012 when he was placed in a position the Agency knew he could not perform, he may contact an EEO counselor to pursue the matter.
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0120121879
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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