0120070629
09-26-2007
Paul V. Amaral, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Paul V. Amaral,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070629
Agency No. 1B029000906
DECISION
JURISDICTION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated October 6, 2006, finding that it was
in compliance with the terms of the May 23, 2006 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.
The settlement agreement provided, in pertinent part, that:
(1) when there is project work to be done on the weekend on Paul
Amaral's tour you will be the person used to oversee the custodial
workers.
By letter to the agency dated August 24, 2006, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency implement its terms. Specifically, complainant alleged that
on August 12, 2006, the agency had Tour 3 custodial laborers working to
complete a project in a section of the facility. Complainant maintained
that he was not asked to oversee the work despite having previously
talked with the supervisor about the project. Complainant indicated
that he was told that he did not have to come in because it was a Tour
1 work area and Tour 3 was just helping out Tour 1.
When complainant questioned management's reason, he was told that he
could not be utilized to perform custodial work because, contractually,
custodians must first be given the opportunity, and they were available.
Complainant requests that he be paid for the hours he should have worked
on August 12, 2006, at his overtime rate with night differential and
interest or in the alternative, complainant requests that his complaint
be reinstated.
.
In its October 6, 2006 FAD, the agency concluded that it did not breach
the settlement agreement. The agency indicated that it was understood
that complainant would be brought in to oversee the custodial workers for
eight (8) hours of project work. However, management maintains that it
had to guarantee eight (8) hours of overtime when bringing in workers
on their non-scheduled day. The agency therefore, could not utilize
complainant on August 12, 2006, because there was no custodial work
for the three remaining hours since the work began at 6:00 p.m. and
ended at 11:00 p.m. The agency maintained that national and local
union agreements required that they first canvas the custodial workers
for overtime opportunities. The agency contends that it will continue
to use complainant on the weekends when there are eight (8) hours of
project work to be done.
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).
In the instant case, the Commission finds that pursuant to the plain
meaning rule the clause in dispute indicates that complainant will be
used when there is project work to be done on the weekend of his tour.
However, we note that the settlement agreement also contains a clause
which indicates that: "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 (CBA) or to reinstate his/her
complaint."
Therefore based on the evidence, we consider the agency's argument
to be an admission that the subject provision violates the collective
bargaining agreement. As such, pursuant to the terms of the settlement
agreement, we declare the agreement null and void. Complainant has the
option to either renegotiate the terms of the agreement with the agency
so that it is in compliance with the CBA or to have the agency reinstate
his EEO complaint from the point that processing ceased.
CONCLUSION
After a careful review of the record, the Commissions Remands this matter
to the agency in accordance with the ORDER below.
ORDER
The agency, within thirty (30) calendar days of the date this decision
becomes final, is ORDERED to send complainant a letter explaining that
the May 23, 2006 settlement agreement has been declared null and void
and that he now has the option of either renegotiating the terms of the
agreement with the agency so that the agreement is in compliance with the
CBA or having the agency reinstate his underlying EEO complaint from the
point that processing ceased. Complainant shall be given fifteen (15)
calendar days to respond to the agency's letter. If complainant does not
respond within the time period, the agency shall treat his non-response
as an election to have the agency reinstate his underlying EEO complaint
from the point that processing ceased. A copy of the agency's letter
and complainant's response, if any, must be submitted 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
______9/26/07____________
Date
2
0120070629
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120070629