0120093449
01-21-2010
Robert W. Sullivan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert W. Sullivan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120093449
Agency No. 4B-018-0007-08
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated July 1, 2009, finding that it was in
compliance with the terms of the February 13, 2009 settlement agreement
(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 Agreement provided, in pertinent part, that:
(1) The Agency shall pay the complainant and his attorney the
following lump sum to resolve complainant's claims against the Agency:
$4,500.00. which shall represent compensatory damages and attorneys fees;
(2) Complainant will be permitted to place a card indicating addresses
that have packages to be delivered on an assigned route;
(3) To the extent possible, in consideration of overtime and staffing
requirements, management will assign Complainant to deliver pivots from
among his T-6 routes.
(4) Complainant shall be permitted to swap Route 11 for Route 18 on a one
time basis. Management will allow the requested swap to the extent there
is no contractual violation involved, including impacts on carriers'
seniority, non-scheduled days, or bidding rights, and the union signs
an agreement waiving grievances over any such alleged violations and
impacts. However this in non-precedential and management is not required
to do this in the future; and
(5) Complainant and his supervisor . . . will meet with a mediator to
discuss ways to facilitate their interactions in the future.
By letter to the agency dated May 19, 2009, complainant alleged that
the agency was in breach of the Agreement, and requested that the agency
specifically implement its terms. Specifically, complainant alleged that
the agency failed to issue the check for $4,500.00, and that supervisors
had not been notified of the terms of the Agreement or preferred not
to comply. Complainant further said that "any representation on [sic]
management's part that [clause 4 of the Agreement] cannot be done is
disingenuous" but it is unclear from complainant's statement whether he
is in fact arguing that management has failed to comply with clause 4.
Complainant next alleges that his supervisor did not agree to meet with
him and the mediator, as required by clause 5 of the Agreement, until
April 25, 2009, more than two months after the Agreement. Complainant
concludes by saying that the delays in implementing the Agreement
amounts to a breach of the Agreement. Finally, complainant made an
argument separate and distinct from the breach allegation, namely that
he was not provided sufficient official time to prepare his statement,
in violation of 29 C.F.R. � 1614.605(b).
In its July 1, 2009 FAD, the agency concluded it had not breached the
Agreement. Specifically, the agency contends that a check for $4,500.00
was issued to complainant and his attorney on May 19, 2009 and that it
had been received by complainant on May 22, 2009. The agency further
maintained that supervisors had been made aware of the Agreement's terms,
and that complainant had not identified specific "dates of concern"
regarding not being assigned to deliver pivots from among his T-6 routes.
The agency further found that during the period in question, none of
the routes pivoted were part of complainant's T-6 routes and that the
Agreement only stipulated that complainant would be assigned pivots that
were part of his T-6 routes. Next, the agency found that its compliance
with clause 4 is contingent on there being "...no contractual violation
involved, including impacts on carriers' seniority, non-scheduled days,
or bidding rights, and the union signs an agreement waiving grievances
over any such alleged violations and impacts...", Agreement, and that any
claim by complainant that the union does not need to sign a waiver "is a
bad faith attempt to alter the specific terms of the Agreement." FAD, 2.
The agency argues that the Agreement does not specify when complainant
and his supervisor were to meet with the mediator and that the meeting
occurred on May 13, 2009. Finally, with regard to complainant's claim
of denial of sufficient official time, the FAD found that complainant
was provided one and a half hours of official time and that this was a
reasonable amount of time.
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 record shows that the agency issued complainant
and his attorney a check for $4,500.00 on or about May 19, 2009 and
complainant does not appear to dispute the agency's contention that
complainant and his supervisor met with a mediator on May 13, 2009.
The Commission does not find that the delays in issuing the check
or meeting with complainant and the mediator are so unreasonable as
to constitute a breach of the Agreement. As regards complainant's
allegation about Route 11 being swapped for Route 18, the Agreement
specifically states that compliance with that term is contingent on
the union signing a waiver of grievances over any alleged violations
and complainant has not shown that the union has signed any such waiver.
On appeal, complainant contends that the office is being restructured and
that Route 11 is now up for open bid and that if management "believe[s]
that this has to be signed off on by my union, . . . this is disingenuous
at best." Complainant does not explicitly state what he is asking for
here, but if he is arguing that the restructuring gives the agency the
opportunity to swap Route 11 for Route 18 without a waiver of grievances
from the union, such an allegation fails to establish that the agency
breached the agreement. Assuming arguendo that the restructuring does
provide the agency with such an opportunity, the Agreement places no
requirement on the agency to take such an opportunity. The Agreement
merely requires that complainant be permitted to swap Route 11 for Route
18, provided the union signs the appropriate waiver. Absent the waiver,
the agency is under no contractual obligation to swap the routes.
Accordingly, complainant has not shown that the agency breached the
Agreement on this issue.
As regards complainant's allegation that supervisors were not notified
of the Agreement's terms or choose not to comply, the Agreement does not
stipulate that supervisors should be notified of the Agreement's terms.
Therefore, standing alone, the allegation of failure to notify supervisors
does not establish that the agency breached the Agreement. Furthermore,
the agency contends that supervisors were notified, and complainant has
provided no evidence to the contrary. In his initial allegation of
breach, complainant did not specify exactly how the agency's alleged
failure to notify supervisors of the Agreement's terms resulted in
a breach of the Agreement. In response to this allegation, the FAD
found that complainant failed to identify specific dates when he was
allegedly denied overtime, and further found that during the time period
in question, there had been no overtime available for complainant under
the terms of the Agreement.
On appeal, complainant provides a number of specific dates and occasions
when he was not offered overtime, in violation of the Agreement.
Complainant, however, has not indicated whether he asked for overtime
on those dates and was denied, or whether he believes that the agency
should have proactively offered him overtime and its failure to do so on
the dates in question therefore amounts to a breach of the Agreement.
Complainant has failed to provide sufficient information to meet his
burden of establishing that the agency breached the Agreement by failing
to notify supervisors of the Agreement's terms, or by supervisors ignoring
the Agreement's terms.
Finally, with regard to the claim of denial of official time, complainant
maintains that he was only permitted one hour of official time, while
the FAD maintains that he was provided an hour and a half. Following a
review of the record we find that complainant has not met his burden of
establishing that he was denied a reasonable amount of official time.
For the above reasons, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 (S0408)
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. 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 (Z1008)
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
January 21, 2010
__________________
Date
2
0120093449
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120093449