Peter K. Poniros, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 11, 2003
01A24828_r (E.E.O.C. Dec. 11, 2003)

01A24828_r

12-11-2003

Peter K. Poniros, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Peter K. Poniros v. United States Postal Service

01A24828

December 11, 2003

.

Peter K. Poniros,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A24828

Agency No. 4E-800-0057-02

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated July 29, 2002, finding that it was in

compliance with the terms of an April 22, 2002 settlement agreement.

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

1614.405.

The April 22, 2002 settlement agreement provided, in pertinent part, that:

1. Counselee's AWOL record shall be changed to LWOP (leave without pay).

2. All 4 LOWS presently outstanding shall be dropped and not reinstated.

3. Counselee's workday shall begin at 4:00 a.m.

..........

7. Counselee shall not be required to do work which would exacerbate

his sciatica or otherwise injure his back, specifically to include not

pulling weeds or mowing the hilly parts of the lawn, i.e., the berm on

the East side of the Valmont Station and the hilly portion in the back,

or West side of the Valmont Station. Counselee will perform all other

work within his job description as assigned.

..........

10. The parties agree to treat each other with dignity, respect and

fairness.

11. No calls shall be made to Counselee's home when he is absent from

work except for emergency overtime, or if he has not called in.

..........

13. Language shall not be added to anything Counselee signs without his

written consent (which may be in the form of initialing the additions).

14. The parties agree to maintain a respectful distance from each other

in accordance with the cultural norms present in our society.<1>

In four letters to the agency, dated June 18, 2002, June 23, 2002,

July 3, 2002, July 18, 2002 and August 2, 2002, complainant alleged

that the agency breached provisions 1, 2, 3, 7, 10, 11, 13 and 14,

and requested that his EEO complaint be reinstated. Specifically,

complainant alleged that on July 22, 2002, his form 3972 still had �AWOL�

written on it (provision 1); the agency failed to remove all LOWs from

his file (provision 2); his start time was changed to 7 a.m. (provision

3); on three occasions, by phone, the Maintenance Manager asked three

co-workers to tell complainant to watch his clock rings (provision 10);

the Maintenance Manager made several calls to his home when he was

absent from work (provision 11); and the Maintenance Manager verbally

attacked him and �came within inches of me� (provisions 7, 10 and 14).

In addition, complainant noted in his breach claim of July 18, 2002,

that an agency official breached �each and every point of agreement.�

In its July 29, 2002 final decision, the agency first noted that

complainant alleged breach only of provisions 2, 11, and 13 of the April

22, 2002 settlement agreement.<2> The decision then indicated, without

further elaboration, that an inquiry had been conducted regarding the

breach claims and that �all stipulations have been complied with.�

The record reflects that subsequent to the issuance of the above

referenced final decision, complainant raised yet another breach claim,

on August 2, 2002, therein claiming that the agency breached provisions 1,

10, 11, and 14.

On appeal, complainant contends that the Maintenance Manager breached

every provision of the settlement agreement for which he had an

affirmative obligation. Complainant further contends that he reported

all breach claims to the EEO Manager and is awaiting to find out what

action has been taken concerning his breach claims.

Complainant also addressed the three provisions expressly referenced by

the agency in its final decision: provisions 2, 11, and 13. Regarding

provision 2, complainant acknowledges that all four LOWs referenced in

therein were indeed removed from his official personnel file on June

24, 2002.

Regarding provision 11, complainant claims that on June 20, 2002,

the Maintenance Manager called his home and left a message on his

answering machine. Complainant further claims that on July 3, 2002,

the Maintenance Manager called his home and spoke with his brother.

In support of his argument, complainant submits a copy of his brother's

statement confirming the phone conversation he had with the Maintenance

Manager on July 3, 2002. Furthermore, complainant claims that on July 17,

2002, a co-worker called his house on the Maintenance Manager's behalf

and left a message on his answering machine. Complainant claims that

he had already called in prior to the co-worker's phone call.

Regarding provision 13, complainant claims that the Maintenance Manager

changed the language in complainant's form 3971 by crossing out the

words �Bid Annual� and added the words �Incidental A/L� without his

written consent. In support of his argument, complainant submits a copy

of form 3971 indicating the changes the Maintenance Manager made without

his consent.

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).

Provisions 10 and 14

Generally, the adequacy or fairness of the consideration in a settlement

agreement is not at issue, as long as some legal detriment is incurred

as part of the bargain. However, when one of the contracting parties

incurs no legal detriment, the settlement agreement will be set aside

for lack of consideration. See MacNair v. U.S. Postal Service, EEOC

Appeal No. 01964653 (July 1, 1997); Juhola v. Department of the Army,

EEOC Appeal No. 01934032 (June 30, 1994) (citing Terracina v. Department

of Health and Human Services, EEOC Request No. 05910888 (March 11, 1992).

The Commission determines that provision 10, requiring the parties �to

treat each other with dignity, respect and fairness,� fails to confer on

complainant any benefit that he was not already entitled to as a matter

of law. Moreover, the Commission finds that provision 14 requiring the

parties �to maintain a respectful distance from each other in accordance

with the cultural norms present in our society� (emphasis added) is

too vague to be enforced. The Commission therefore determines that

provisions 10 and 14 are void. However, given that consideration was

exchanged through the other provisions of the agreement, we find that

the entire settlement is not invalid, but rather reformed without the

void provisions 10 and 14.

Provision 2

With respect to provision 2, we find that complainant acknowledges

on appeal that the agency ultimately fulfilled its obligations under

provision 2 when on June 24, 2002, it removed all four of his LOWs from

his file. Accordingly, the agency's finding of no breach of provision

2 is AFFIRMED.

Provisions 11 and 13

We find that the agency breached provisions 11 and 13 of the settlement

agreement. Provision 11 provides for an affirmative agency obligation not

to make calls to complainant's home when he is absent from work except

for emergency overtime, or if he has not called in. Complainant, on

appeal, proffers evidence that the agency made calls to his residence

when he was absent from work. Provision 13 provides for an affirmative

agency obligation not to add language to any documentation complainant

signs without his written consent. Complainant, on appeal, also

proffers evidence that the Maintenance Manager changed the language in

complainant's form 3971 by crossing out the words �Bid Annual� and added

the words �Incidental A/L� without his written consent. Therefore,

the Commission finds that the agency breached provisions 11 and 13.

In findings of breach, the Commission may order the agency to reinstate

the underlying complaint or to enforce the terms of the agreement.

The Commission finds that enforcement of provision 11 and 13 of the

settlement agreement, given the specific circumstances of this case,

is the more appropriate remedy.

Accordingly, the Commission REVERSES the agency's finding of no settlement

breach regarding provisions 11 and 13 and REMANDS these matters to the

agency for further processing in accordance with the ORDER below.

Provisions 1, 3, and 7

Regarding provisions 1, 3, and 7, we note that the agency failed to

address these claims in its final decision. The record contains the

Maintenance Manager's affidavit dated July 22, 2002. Therein, the

Maintenance Manager made a general statement, without elaboration,

that all provisions have been complied with. However, given the

absence of evidence other than the affidavit described above, we are

unable to ascertain whether the agency breached provisions 1, 3, and 7.

Accordingly, the agency's finding of no breach of the settlement agreement

with regard to provisions 1, 3, and 7 is VACATED. This matter is REMANDED

to the agency for further processing in accordance with the ORDER below.

ORDER

The agency is ORDERED to take the following actions:

1) The agency shall supplement the record with evidence clearly showing

that it has complied with provisions 1, 3, and 7 of the April 22, 2002

settlement agreement. Within thirty calendar days of the date that this

decision becomes final, the agency shall issue a new decision determining

whether the agency breached provisions 1, 3, and 7 of the April 22,

2002 settlement agreement. A copy of the agency's new decision must be

sent to the Compliance Officer as referenced herein.

2) Regarding provision 11, the agency shall make sure that there will be

no calls made to complainant's home when he is absent from work except for

emergency overtime, or if he has not called in. Regarding provision 13,

the agency shall, in the absence of complainant's written consent, delete

the marking that crossed out the words �Bid Annual,� as well as remove

the words �Incidental A/L� from complainant's form 3971. In addition,

the agency shall make sure that there would be no language added to any

documentation complainant signs without his written consent including

the form of initialing the additions.

The agency is further directed to submit a report of compliance, as

provided in the settlement entitled �Implementation of the Commission's

Decision.� The report shall include all supporting documentation

verifying that the corrective actions have been implemented.

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

December 11, 2003

__________________

Date

1The settlement agreement contained a variety

of other provisions that were not expressly referenced by complainant

in his specific breach claims, i.e., an agency official would have

a co-worker begin his workday at 8:00 a.m.; an agency official and

union representative would meet with a co-worker to discuss moving

his start time to a later time; complainant would stay away from a

co-worker at all time except when necessary to conduct his duties;

complainant would perform work within his job description as assigned;

complainant would drop his complaint with the National Labor Relations

Board and all complaints of safety violations against an agency official

and all grievances related to the subject matter of the complaint;

complainant would raise any concerns relating to employees not performing

their assigned work to the current Maintenance Manager or to an union

representative; and that complainant would be given the opportunity to

copy everything he signs.

2 In its final decision, the agency stated that its determination was

�in reference to [complainant's] letter of June 21, 2002" alleging

settlement breach. However, the record does not contain a copy of a

June 21, 2002 breach letter.