01a43346
04-21-2005
Michael P. Steger, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael P. Steger v. United States Postal Service
01A43346
April 21, 2005
.
Michael P. Steger,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43346
Agency No. 4H-370-0279-03
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated March 23, 2004, finding that it was in
compliance with the terms of the December 4, 2003 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
(1) Management agrees to re-evaluate in an open and honest way the
circumstances, data and feedback of other relevant managers surrounding
the performance of the complainant during his probationary period.
The purpose of the re-evaluation will be to determine/ascertain whether
the complainant is deserving of a new 90 day probationary period.
The re-evaluation will be accomplished in collaboration with the
complainant's representative.
(2) The complainant agrees to accept the findings and decision of
management.
EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant
believes that the agency failed to comply with the terms of a settlement
agreement, the complainant should notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of when the complainant knew or should
have known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point processing ceased. The agency shall resolve the matter and
respond to the complainant, in writing. If the agency has not responded
to the complainant, in writing, or if the complainant is not satisfied
with the agency's attempt to resolve the matter, the complainant may
appeal to the Commission for a determination as to whether the agency
has complied with the terms of the settlement agreement or final decision.
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).
The Commission has followed this rule when interpreting settlement
agreements. The Commission's policy in this regard is based on the
premise that the face of the agreement best reflects the understanding
of the parties.
In pre-complaint paperwork (PS Form 2564A) received in the EEO Office
on February 3, 2004, complainant alleged that the agency was in breach
of the settlement agreement. Specifically, complainant alleged that
management failed to provide information to his EEO Representative and
thus, no progress or remedy was made on his case.
In its March 23, 2004 final decision, the agency concluded that
the December 4, 2003 settlement agreement had not been breached.
The agency noted that, on January 6, 2004, a management official notified
complainant's EEO Representative that all parties were now available
and that they could begin the interviews. The agency mentioned that
complainant's EEO Representative replied that he would get back with
the management official, but the management official never heard
from complainant's EEO Representative. The agency stated that, on
January 20, 2004, the management official sent a certified letter to
complainant's EEO Representative informing him that he had never heard
from him and that he would give complainant's EEO Representative more
time to respond; however, complainant's EEO Representative failed to
contact the management official. The management official reported that,
since complainant's EEO Representative failed to respond, he conducted
interviews of all management personnel involved, and re-examined
the data that was available concerning complainant. The management
official commented that, on February 20, 2004, he sent a certified
letter to complainant's EEO Representative and notified him that he had
completed the re-evaluation of complainant's case and his decision was
that complainant was not deserving of a new 90-day probationary period.
The Commission finds that the record contains insufficient evidence to
make a determination as to whether the agency breached the settlement
agreement. The agency did not provide evidence of the January 6,
January 20, and February 20, 2004 letters written by the management
official as referenced in its March 23, 2004 final decision. Therefore, we
shall remand the matter so that the agency may supplement the record with
evidence showing whether it has complied with the settlement agreement.
The matter is REMANDED to the agency for further processing in accordance
with this decision and the Order herein.
ORDER
The agency shall put evidence into the record showing that whether it has
complied with provision 1 of the December 4, 2003 settlement agreement.
The agency shall provide evidence showing that a management official
attempted to contact complainant's EEO Representative on January 6,
January 20, and February 20, 2004. The agency, within 30 calendar
days of the date this decision becomes final, must issue a decision
addressing whether the agency has complied with provision 1 of the
settlement agreement. A copy of the new decision must be sent to the
Compliance Officer as referenced herein.
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 (R0900)
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 (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 21, 2005
__________________
Date