0120122936
12-07-2012
Steven T. Carmagnola, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Steven T. Carmagnola,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120122936
Agency No. 4C-250-0041-11
DECISION
Complainant filed a timely appeal with this Commission from a letter of determination by the Agency dated June 13, 2012, finding that it was in compliance with the terms of the September 23, 2011 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
On September 23, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter that was pursued in the EEO complaint process. The settlement agreement provided, in pertinent part, that:
Within Thirty (30) Days from the signing of this agreement, Management from the Appalachian District will conduct a Climate Assessment into the work environment of the Troutville, Virginia Post Office. At the conclusion of the Climate Assessment [Manager, Post Office Operations] will then conduct a meeting with the Counselee to apprise him of the outcome of the Climate Assessment. The Counselee understands that the Climate Assessment may result in a conclusion that there has been actionable inappropriate conduct, in which case management will determine and take appropriate responsive action, or it may result in a conclusion that no actionable conduct has occurred, in which case no further action will be taken.
By PS Form 2564-A "Information for Pre-Complaint Counseling" to the Agency dated March 19, 2012, Complainant alleged breach. Specifically, Complainant alleged that the results of the assessment were unsatisfactory, that the cited issues in the instant agreement were not addressed, that the delivery was inconsistent, and that employees were intimidated.
In its June 13, 2012 letter of determination, the Agency found no breach. The Agency stated that after the Manager, Safety from the Appalachian District conducted the initial climate assessment at the Troutville Post Office on September 30, 2011, he issued a survey report on October 3, 2011. The Agency stated that in November 2011, the Manager of Post Office Operations (Manager) met with Complainant to discuss the survey results. At that meeting, it was brought to Complainant's attention that two Part-Time Flexible (PTF) clerks were not included in the survey. As a result, the Manager, Safety conducted a climate survey assessment with the two PTF clerks and then submitted an amended survey report on January 5, 2012.1
Further, the Agency stated that on January 5, 2012, the manager met with Complainant and the Postmaster of the Troutville Post Office review the results of the survey. The Agency noted that during the meeting, the manager advised Complainant that no further action would be taken because it was determined that there was no actionable conduct.
Complainant, on appeal, stated that the Agency breached the instant agreement because his concerns were never addressed. For instance, Complainant stated that he talked to the two PTF Clerks after the second climate assessment survey and they "expressed regret in not understanding the surveys intent, so therefore recorded positive comments...some of the employees given the survey are in fact RCA's. They are vying for a permanent position and therefore did not want to 'rock the boat.'"
Further, Complainant stated that he "has been denied medical care, pushed beyond my medically documented limitations, refused relief from pain to a lesser physically demanding duty when requested, having been sent home for using the bathroom being told that I do not get paid for that, and have been ridiculed from actions that other routinely do with full acceptance from the postmaster. Most recently I was on limited light duty and was still verbally reprimanded 'put on notice' for not moving quickly enough. If this is not bullying then please tell me what it may be."
ANALYSIS AND FINDINGS
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 (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. Dep't 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. U.S. Postal Serv., 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).
The instant agreement provides for an affirmative Agency obligation that management would conduct a climate assessment survey and then meet with Complainant to review the survey results. The record reflects that management complied with the instant agreement and timely conducted the survey.
The record contains a copy of the manager's affidavit. Therein, the manager stated that following the signing of the instant agreement, the Manager, Safety from the Agency's Appalachian District conducted a climate assessment survey at the Troutville Post Office on September 30, 2011, and prepared a report of the survey results on October 3, 2011. The manager further stated that in November 2011, she met with Complainant and the Postmaster "to apprise him about the results of the Climate Assessment. During the meeting it was brought to our attention that two PTF Clerks had not been included in the Climate Assessment Survey. [Manager, Safety] later conducted the Climate Assessment Survey with both PTF's, [and] then prepared an amended report on January 5, 2012. On January 12, 2012, I conducted another meeting with [Complainant] and [Postmaster]. [Complainant] was apprised of the results of the Climate Assessment and informed that no further action was going to be taken because it was determined no actionable conduct has occurred."
Moreover, we note that a claim of reprisal in violation of a settlement agreement's no reprisal clause is to be processed as a separate complaint rather than as a breach of the settlement agreement. See Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225 (August 9, 1990). Additionally, 29 C.F.R. � 1614.504(c) provides that claims that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints. Complainant is advised to contact an EEO Counselor if he wishes to pursue such claims. See 29 C.F.R. � 1614.504(c).
The Agency's finding of no breach of the September 23, 2011 settlement agreement was proper and is AFFIRMED.
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), at 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 (S0610)
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 (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
December 7, 2012
__________________
Date
1 The Agency inadvertently stated that the Manager conducted a second climate assessment survey instead of the Manager, Safety from the Appalachian District.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120122936
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122936
6
0120122936