0120120303
08-30-2012
Neville S. Abraham, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Neville S. Abraham,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120120303
Agency Nos. IF-937-0025-05
IF-937-0026-06
IF-937-0012-07
IF-937-0006-09
DECISION
Complainant has timely appealed two letters of determination by the Agency dated August 5, 2009, finding that it complied with the terms of two 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
September 2008 Settlement Agreement
At the time of events giving rise to this settlement agreement, Complainant worked as a Maintenance Operations Supervisor at the Fresno, California, Processing and Distribution Center. Complainant and the Agency settled three EEO complaints (IF-937-0025-05, IF-937-0026-06, and IF-937-0012-07) on September 29, 2008. The parties agreed to the following, in pertinent part:
5. Retroactively promote Complainant into the position of Supervisor, Maintenance Operations, EAS level 17 (the same as the selectee) with a parallel and equal seniority date as the selectee (October 1, 2005), with duty hours of 1:00 p.m. to 9:30 p.m., and Scheduled Days Off of Tuesday & Wednesday.
6. That based on the operational needs of the Postal Service, Complainant may be required to report to work prior to 1:00 p.m.
In a letter to the Agency dated May 25, 2009, Complainant alleged that the Agency breached the September 29, 2008, settlement agreement. Specifically, Complainant alleged that the Agency breached the terms of the agreement when, on May 21, 2009, the Agency informed him that his duty hours would be changed, and he would be required to report to work at 2:30 p.m.
On August 5, 2009, the Agency issued a letter of determination in which it found that it did not breach the September 2008 settlement agreement. In that letter, the Agency stated that the Plant Manager explained that Complainant's work schedule was changed to 2:30 p.m. until 11:00 p.m. with Saturdays and Sundays off because of the operational needs of the facility, and that the settlement agreement did not provide that Complainant's duty hours or days could not be changed.
February 2009 Settlement Agreement
Complainant contacted an EEO Counselor on December 9, 2008, to initiate the EEO complaint process for another complaint (Agency No. 1F-937-0006-09). On February 5, 2009, Complainant and the Agency entered into another settlement agreement. This settlement agreement provided, in pertinent part:
1. The Agency agrees to review the hours given to [two other Supervisors of Maintenance Operations, SMOs] for the period between October 1, 2008 and December 11, 2008 to determine if additional hours were worked by the above-mentioned [SMOs] that were not given to the Counselee. It [sic] is determined that the above-mentioned SMOs did in fact work additional hours during the time period mentioned above, the Maintenance Manager will request the hours that are determined be credited to Counselee's annual leave. Counselee understands that the crediting of the hours determined will be contingent upon the approval of the Plant Manager.
2. The Agency further agrees to provide Counselee access to all training material relevant to his position of record. The Agency also agrees to provide Counselee training in eMARS specifically and to provide additional training that will bring the Counselee up to par with his peers. Additionally, the Agency agrees to provide the Counselee appropriate [training requested] by the Counselee. Counselee understands that the subject training may be impacted by available Agency funding.
3. The Agency also agrees to provide the Counselee access to all computer systems necessary for the Counselee to perform in his position of record.
4. The Counselee has also requested compensatory damages in the amount of eleven thousand dollars ($11,000.00). The above-named Management Official agrees to present his request to the Plant Manager. If the Plant Manager does not agree to the compensatory damages requested, he will respond with his best offer for Counselee's consideration, which will be presented to the mediator by close of business February 10, 2009. Counselee will respond to the acceptance or rejection of the best offer by close of business February 12, 2009. If Counselee rejects the offer, the terms of this agreement are null and void and Counselee may pursue his complaint of discrimination.
By letter to the Agency dated June 3, 2009, Complainant alleged that the Agency beached the February 2009 settlement agreement and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to comply with provision 1 of the agreement because it failed to inform him whether the Maintenance Manager requested that the Plant Manager approve the crediting of the hours to Complainant's annual leave.
In another letter of determination dated August 5, 2009, the Agency concluded that it did not breach the February 2009 agreement. With respect to provision 1, the letter reported that the Plant Manager stated that the Acting Maintenance Manager reviewed timekeeping records and found that the SMOs worked a total of 26.71 hours of overtime during the relevant time period, and the Plant Manger determined that it was not appropriate in this particular situation to provide Complainant with an equal amount of annual leave. The letter further reported that the SMOs were Tour 1 employees who worked overtime because of emergency conditions caused by equipment problems, and EAS employees are unlike craft employees because overtime for EAS employees is only used because of conditions that exist on that tour.
Regarding provision 2, the letter stated that the Agency provided Complainant with access to training material relevant to his position, and the Plant Manager reported that training has been affected by a lack of funding for supervisors, although some eMARS training has been provided to Complainant, and additional eMARS training will be provided as funding and resources allow. The letter further stated that the Plant Manager reported that the Agency submitted requests for additional training in accordance with annual training procedures, and Complainant has been afforded the opportunity to apply for any online courses offered by the Agency.
With respect to provision 3, the letter stated that Complainant has been given authorized access to all computer systems and will continue to be provided access to any computer program needed for his position. Regarding provision 4, the letter stated that Complainant requested compensatory damages in the amount of $11,000.00. The letter further stated that Complainant's compensatory damages request was presented to the Plant Manager, but the Plant Manager denied the request.
CONTENTIONS ON APPEAL
Complainant appeals the Agency's determinations with respect to the September 2008 and February 2009 settlement agreements. With respect to the September 2008 agreement, Complainant argues that changing his promised work schedule just eight months after the agreement was executed constitutes a breach of the February 2009 agreement. Complainant maintains that the operational needs of the facility have not been significantly changed from the date the agreement was reached. Complainant requests that the Commission order specific enforcement of the September 2008 agreement.
Regarding the February 2009 agreement, Complainant contends that, while he has been given access to the eMARS computer program, he has not received any eMARS training since the Agency entered into the February 5, 2009, settlement agreement. Complainant argues that "mere access, with nothing more, cannot even be considered reasonable on-the-job training," and he should at least have someone to whom he can address his questions about the training to assist him. Complainant also contends that the Agency has not provided its local maintenance operations budget for the relevant time period, and if it did, that budget would demonstrate that funds and resources have been available for his eMARS training, but local management has secretly diverted funding and resources from maintenance operations into other functions. Complainant further contends that, although the Agency provided him with access to computer systems on his work computer, it has ignored his request to have access from his home computer, although other Maintenance Operations Managers have such access.
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 (Dec. 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 (Aug. 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 (Dec. 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).
Upon review of this matter, we are unable to ascertain whether the Agency breached the February 5, 2009, settlement agreement because the record is inadequately developed. We note that the Agency's determination about the February 5, 2009, agreement is based on purported statements from the Acting Maintenance Manager and Plant Manager. However, the record contains no affidavits from these individuals indicating that the Agency fulfilled its obligations under the terms of the February 2009 settlement agreement. In contrast, the Agency provided an affidavit statement from the Plant Manager addressing Complainant's claim that the Agency breached the September 29, 2008, settlement agreement. We note that the Agency has the burden to provide evidence and/or proof to support its final decisions. See Gens v. Dep't of Defense, EEOC Request No. 05910837 (Jan. 31, 1992). In order to avoid piecemeal determinations of Complainant's breach claims, we will hold our decision on the Agency's compliance with the September 29, 2008, settlement agreement in abeyance until the Agency conducts a supplemental investigation on its compliance with the February 5, 2009, agreement.
Accordingly, the matter is held in ABEYANCE, and REMANDED to the Agency for further processing in accordance with this decision and the ORDER of the Commission, below.
ORDER TO SUPPLEMENT RECORD (B0610)
Within forty-five (45) days of receipt of this order, the Agency shall conduct a supplemental investigation which shall include the following actions:
The Agency shall supplement the record with evidence clearly addressing whether it has complied with the terms of the February 5, 2009, settlement agreement. The supplementation of the record shall include documentation, such as affidavits from the Plant Manager and Acting Maintenance Manager clearly addressing Complainant's breach claims.
Upon completion of the investigation, the Agency must provide the Complainant with a copy of the supplemental record and findings and return the completed record to the Compliance Officer, as referenced below. The Complainant may, within fifteen (15) days of receipt of the supplemental record, submit a statement concerning the supplemental record to the Compliance Officer. Upon receipt by the Compliance Officer, the supplemental record will be included in the appeal file and the appeal will be processed appropriately.
In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-23 (November 9, 1999), the Agency shall give priority to this remanded case in order to comply with the time frames contained in this Order. The Office of Federal Operations will issue sanctions against agencies when it determines that agencies are not making reasonable efforts to comply with a Commission order to investigate a complaint.
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
August 30, 2012
Date
2
0120120303
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120303