0120080734
03-11-2008
Stephen Favor, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Stephen Favor,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080734
Agency No. 1C-443-0016-07
DECISION
Complainant filed a timely appeal with this Commission from a letter of determination by the agency dated October 31, 2007, finding that it was in compliance with the terms of a March 28, 2007 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The March 28, 2007 settlement agreement provided, in pertinent part, that:
Management will provide work for [complainant] for 120 days starting April 1, 2007 on tour two working the OCR/BCS. A written job offer will be provided to ensure the job is within [complainant's] capabilities. Management and [complainant] will meet within 60 days to discuss progress of positions available."
The record reflects that on an unspecified date, complainant sent a PS Form 2564 to the agency, claiming breach of the March 28, 2007 settlement agreement. Complainant claimed that "in April 2007 through the EEO mediation process, [a named Plant Manager] and myself agreed that he would bring me back to t-2 [tour 2] from t-1 [tour 1] and have me work my automation bid that he had just months previously abolished. This would be a temporary deal until he could find me work that fit within my limitations per the ELM (Employee Labor Relations Manual). [Plant Manager] has since reassigned me to T-1 (2200-0430), thus violation my rights as an OJI under the ELM agreement on quite a few occasions."
In its October 31, 2007 letter of determination, the agency found no breach. Specifically, the agency stated that according to the Manager Distribution Operations (MDO), she was told by the Plant Manager "after the mediation, that [complainant] would be kept on Tour 2, working the mail on a BCS machine, instead of the DBCS, on which the Plant Manager had planned to work mail." MDO stated that because it was the same job complainant had previously worked, she deemed it unnecessary to give complainant any new job offer since he was working his previous bid job. MDO stated that in July 2007, complainant provided her with medical documentation and stated that he could no longer work on the BCS machine. MDO stated that because there was no work available for complainant on Tour 2, he was given a job offer on July 18, 2007 to work on Tour 1, which he signed on the same day. MDO stated that other employees have had to move to Tour 1 when no work was available for them.
Further, the agency stated that a review of Time and Attendance documentation indicated that complainant worked Tour 2 from April 1, 2007 through July 21, 2007, for a total of 112 days of work on Tour 2. The agency stated although complainant worked 8 days less than the 120 days on Tour 2, pursuant to the MDO's statement, complainant had informed management that he could no longer perform the duties that he was assigned to and no other work was available on Tour 2. The agency further stated that a review of complainant's Offer of Modified Assignment (Limited Duty) indicated that complainant accepted the offer and signed this offer on July 18, 2007. Furthermore, the agency noted that MDO stated that she had been willing and was planning to work complainant permanently on his desired tour (Tour 2) but that he was no longer able to perform the work that was available on that tour.
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 determines that the record in this case contains insufficient evidence for us to determine whether a breach of the March 28, 2007 settlement agreement has occurred. The agency's final decision finding no breach is predicated upon statements by the MDO. However, the record contains no affidavit from the MDO indicating that she purportedly fulfilled the obligations under the terms of the settlement agreement. Given this lack of evidence, we are unable to ascertain whether the agency complied with the settlement agreement. Accordingly, the agency's finding of no breach of the settlement agreement 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 action:
The agency shall supplement the record with evidence clearly showing that it has complied with the instant settlement agreement. The supplementation of the record shall include any documentation, such as an affidavit from the MDO, indicating whether complainant was provided an opportunity to work for 120 days starting April 1, 2007 on Tour Two working the OCR/BCS; whether complainant was offered a written job offer ensuring that the job is within his capabilities; and whether management and complainant met to discuss progress of positions available within 60 days following the execution of the settlement agreement. Within thirty (30) calendar days of the date this decision becomes final, the agency shall issue a new decision concerning whether it breached the March 28, 2007 settlement agreement.
A copy of the agency's new decision must be sent to the Compliance Officer as referenced herein.
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
March 11, 2008
__________________
Date
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0120080734
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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