01A10191_r
04-08-2002
Michael B. Ganino, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael B. Ganino, Jr. v. United States Postal Service
01A10191
April 8, 2002
.
Michael B. Ganino, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A10191
Agency No. 1B-065-0010-00
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated August 23, 2000, finding that it was in
compliance with the terms of the December 16, 1999 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
[Complainant] agrees to go to Staples or Officemax to obtain prices for a
chair and a desk, which [Person A] will purchase for [complainant's] use;
(2) Parties agree that DSIS Function 2 is a shared duty that can be
performed by General Clerk/Management;
(3) Parties agree that mid-morning/ DSIS-Function 4 hours, volumes,
etc. will be done by the General Clerk;
(4) Parties agree to the extent possible, work of the General Clerk will
be centralized in the �computer area�;
Parties agree that limited duty or cross craft will not be performed
to the detriment of the general clerk;
[Person A] agrees to communicate medical restrictions and military
disabilities to supervisors so that [complainant] will not be asked to
perform duties outside the scope of [his] limitations.
By letter to the agency dated May 4, 2000, complainant alleged that
the agency was in breach of the settlement agreement. With regard to
provision (2), complainant stated that he no longer performs any Function
2 activities (shared). With regard to provision (3), complainant alleged
that he was replaced on function four hours by a supervisor and assigned
to parcel post and nixies. Complainant also stated that he was replaced
on Function 4 DSIS (Delivery Service Information Systems) and volumes by
supervisors and a limited duty carrier. With regard to provision (4),
complainant stated that he was removed from the �computer area.� With
regard to provision (5), complainant alleged that he no longer types
any letter, correspondence, or form. Finally complainant stated that
he was replaced on the answering of phones and has not been allowed to
perform any administrative work.
In its August 23, 2000 decision, the agency concluded that it did
not breach the December 16, 1999 settlement agreement. With regard to
complainant's claim that he no longer performs any Function 2 activities
pursuant to provision (2), the agency stated that the implementation
of an expedited data processing network has resulted in less manual
intervention. The agency claimed, however, that complainant is still
responsible for sharing the input of mail volumes and correcting clock
ring errors as stipulated in the agreement. With regard to complainant's
claim concerning provision (3), the agency responded that complainant
was not given an order to stop working on Function 4. The agency noted
that complainant is the only clerk that assists management with the daily
DSIS operation, but stated that in complainant's absence, a limited duty
employee may assist the supervisors in manually adding the mail volumes.
In response to complainant's claim that he was placed by one supervisor
in parcels and then taken out by another supervisor, the agency stated
that it was at complainant's election to participate in throwing parcels.
With regard to complainant's claim that the agency breached provision (4)
when it removed him from the computer area, the agency responded that the
distance between the computer and the desk utilized for nixies is 28 feet.
The agency indicated that complainant chose to work between the computer
desk and the nixie desk. Finally, the agency addressed complainant's
claim that supervisors and limited duty cross craft perform part and/or
all of his job functions. The agency noted that tasks, such as answering
the phones, verifying nixie mail, and manually totaling the mail volume,
are assigned to limited duty employees in complainant's absence to assist
the supervisor. In reference to cross craft, management stated that
the typing of correspondence, filing, or other administrative duties
are performed by management to maintain confidentiality. The agency
also stated that complainant may be afforded administrative work
with instructions, however, in accordance with complainant's position
description, he is not permitted to perform this work for substantial
periods of time.
On appeal, complainant states that although management has allowed him to
perform the duties specified in provision (2), it has not allowed him to
perform these duties on an equal basis (which he states was �defined by
the parties as 50/50"). Complainant stated that despite the creation of
the new computer program, the agency routinely performs the same work in
the manner previously carried out by complainant. Complainant reiterates
that he is not allowed to perform mid-morning/DSIS-Function 4 work.
Complainant states that he has been removed from the �computer area.�
Complainant claims that at least three to four letter carriers (two
of whom are limited duty) have replaced him in performing his limited
duty assignments. Finally, complainant states that Person A has failed
to communicate his medical restrictions and military disabilities to
his supervisors. Specifically, complainant states that his immediate
supervisor was not informed of the contents of the 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 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 present case, we find that complainant has not shown non-compliance
with provision (2) of the December 1999 settlement agreement. Provision
(2) states that DSIS Function 2 is a shared duty that can be performed
by General Clerk/Management. In his breach claim, complainant stated
that the agency no longer allows him to perform Function 2 activities.
On appeal, however, we note that complainant admits that management does
allow him to perform the duties specified in provision (2). Although
complainant states that he is not allowed to perform the duties on a 50/50
basis, we find that provision (2) does not require equal distribution of
the duties. Provision (5) of the agreement states that limited duty or
cross craft will not be performed �to the detriment� of the general clerk.
With regard to complainant's claim that the agency breached provision (5),
the Commission finds that this provision is too vague to be enforced.
With regard to complainant's claim that the agency breached provisions
(3) and (4) of the agreement, we find that the record does not contain
sufficient evidence to determine whether these provisions have been
breached. Specifically, although the agency decision mentions that
an inquiry was conducted with Person A regarding complainant's breach
claims, we note that there is no copy of the inquiry nor an affidavit
from Person A indicating his response to the breach allegations. Finally,
we note
that on appeal, complainant attempts to argue for the first time that
the agency breached provision (6) of the agreement; however, since
complainant did not previously raise this issue with the agency, the
Commission will not address this allegation in the present appeal.
The agency's decision finding that it did not breach provisions (2) and
(5) of the settlement agreement is AFFIRMED. The agency's decision
finding that provisions (3) and (4) of the settlement agreement have
not been breached is VACATED and we REMAND these provisions for further
processing in accordance with the Order below.
ORDER
The agency is ordered to take the following actions:
Provide documentation showing whether complainant is performing
mid-morning/DSIS-Function 4 hours, including a statement from complainant,
his supervisor, and other relevant individuals.
Provide documentation, such as affidavits from witnesses, showing whether
complainant voluntarily removed himself from the �computer area.�
The agency shall issue a new decision addressing complainant's claims that
the agency breached provisions (3) and (4) of the settlement agreement
within thirty (30) calendar days of the date this decision becomes final.
A copy of the agency's new final decision must be sent to the Compliance
Officer as referenced below.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
April 8, 2002
_______________________
Date