Michale A. Redmon, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 1, 2003
01a33721 (E.E.O.C. Dec. 1, 2003)

01a33721

12-01-2003

Michale A. Redmon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Michale A. Redmon v. United States Postal Service

01A33721

December 1, 2003

.

Michale A. Redmon,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A33721

Agency No. 4-C-400-0040-02

DECISION

Complainant filed a timely appeal with this Commission from an agency

final decision dated May 5, 2003, finding no breach of a May 24, 2002

settlement agreement. The Commission accepts the appeal. See 29 C.F.R. �

1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.

The May 24, 2002 settlement agreement provided, in pertinent part, that:

(1) [Complainant] can stay in his present position in the [Special

Delivery] Unit while he and the Reasonable Accommodation Board go

through the process of reaching a reasonable accommodation solution; and

[complainant] will continue to work toward qualification on his assigned

job; and [Postmaster] agrees [complainant] will be held up to 28 days

after qualifying so that the Board can complete the process;

(2) And [Postmaster] will sign a transfer release if [complainant]

makes a written request for a hardship transfer to Frankfort and the

Frankfort Postmaster agrees to accept him; [emphasis in original];

(3) And [complainant] agrees to dismiss his charges and have the files

closed;

If the terms of this agreement are determined to violate a provision of

the applicable collective bargaining agreement, this agreement will be

null and void. In the event that this agreement becomes null and void,

the complainant will be allowed to either renegotiate the terms of this

agreement to be in compliance with the collective bargaining agreement

OR to reinstate his or her complaint.<1>

By letter to the agency dated January 14, 2003, complainant claimed that

the settlement agreement was null and void. Specifically, complainant

claimed that provision 1 violated the collective bargaining agreement

(CBA). Complainant claimed that the CBA mandates that a clerk can only

be retained in his current position for 28 days once he qualifies for

a new position, and also that the agency is liable for out-of-schedule

pay from the date of qualification. Complainant stated that a union

official verified that the settlement agreement was null and void because

provision 1 violates the CBA, and requested that the settlement agreement

be rescinded, and his complaint reinstated.

In its May 5, 2003 decision, the agency determined that complainant

qualified for a Flat Sorter position, but was held longer than 28 days

in the Special Delivery Unit while the reasonable Accommodation Board

worked to find a suitable accommodation for complainant. The agency

noted that the process was lengthy, and that complainant was initially

informed that no position was available. However, when complainant

eventually submitted necessary medical documentation (a February 2003

statement from his psychologist) he was then placed in a position and

accommodated based on the restrictions in the statement.

Moreover, the agency noted that complainant had filed a grievance

concerning the out-of-schedule pay issue, which the Postmaster denied

at the Step 2 level, finding that complainant was held past the 28 days

after qualifying for a job without this pay because of provision 1.

The agency then determined that complainant was held beyond the 28 days

because his psychologist did not submit a statement until February 20,

2003, and found that because the issue of out-of-schedule pay had been

the subject of a grievance, this matter may be in the purview of the

grievance/arbitration forum. Accordingly, the agency concluded that it

did not breach the settlement agreement.

On appeal, complainant argues that the terms of the settlement agreement

itself violate the CBA, and makes reference to provision 4 in support of

his claim that the settlement agreement should be declared null and void.

Complainant further clarifies that he is not claiming a breach of the

settlement agreement, but rather that the settlement agreement is null

and void because it conflicts with the CBA. Complainant argues that

provision 4 gives him the option (a) to either renegotiate the terms so

as to be in compliance with the CBA, or (b) to reinstate his complaint.

Complainant claims that he chooses reinstatement of the complaint.

Complainant states that he has several complaints pending before an EEOC

Administrative Judge, and wishes to present the overall picture of the

discrimination he is experiencing at the agency.

In response, the agency argues that complainant is improperly raising a

new issue on appeal regarding the out-of-schedule pay issue, noting that

this is not a matter addressed in the settlement agreement. Additionally,

the agency contends that it complied with the settlement agreement when

it provided complainant with the reasonable accommodations described

in the February 20, 2003 psychologist statement, and instructed him to

report to his bid assignment.

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).

The record in this case does not contain a copy of the CBA provision

at issue. However, it appears that both complainant and the agency agree

that the CBA mandates that retention up to 28 days in a current position

is permitted after qualifying for a new position, but that the agency

must pay �out-of-schedule� pay from the effective date of qualifying, up

until the date of actual placement. While the agency acknowledges this

matter, it nevertheless argues that it is not liable to pay complainant

out-of-schedule pay under the CBA in this instance because the settlement

agreement does not obligate it to do so. Complainant argues that because

the settlement agreement does not address the payment of out-of-schedule

pay consistent with the CBA, it violates the CBA and must be declared

null and void, as provided by provision 4.

After careful review, we concur with complainant that provision 1

violates the CBA, based on the agency's interpretation that the settlement

agreement relieved it of its obligation to pay complainant out-of-schedule

pay under the CBA. In this regard, we note that the parties do not

stipulate that the CBA makes a distinction regarding retention because

of assessing a request for a reasonable accommodation, but clearly

stipulates that the CBA requires the agency to pay out-of-schedule pay

from the date of qualifying to the date of actual placement. Moreover,

we do not find that the issue of out-of-schedule pay is raised for the

first time on appeal, but that complainant clearly raised this matter

in his breach claim.

Accordingly, because we determine that provision 1 violates the CBA,

we find that the settlement agreement must be declared null and void

pursuant to provision 4. Moreover, under the provision 4 options, we

find that complainant clearly wishes to have his underlying complainant

reinstated for processing.

Accordingly, for the reasons set forth above, we VACATE the agency's

final decision, and we REMAND the case to the agency with instructions

to reinstate his underlying complaint at the point at which processing

ceased, as more fully set forth in the ORDER below.

ORDER

Within thirty (30) calendar days of the date this decision becomes final,

the agency is ordered to reinstate complainant's underlying complaint

at the point at which processing ceased, and to continue its processing.

If appropriate, consistent with complainant's desire, the agency should

consolidate the processing of the underlying complaint with complainant's

pending complaints, to include those pending before an EEOC Administrative

Judge.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights 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 (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

December 1, 2003

__________________

Date

1This provision is un-numbered in the settlement agreement. It has been

numbered herein for ease of reference.