01986413
02-04-2000
Tony DiBenedetto, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Tony DiBenedetto v. United States Postal Service
01986413
February 4, 2000
Tony DiBenedetto, )
Complainant, )
)
v. ) Appeal No. 01986413
) Agency Nos. 1F-921-0011-97
William J. Henderson, ) 1F-921-1072-96
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant timely appealed the agency's decision that denied his
claim that the settlement agreement entered into between the parties
had been breached. (see 64 Fed. Reg. 37,644, 37,659 (1999) (to be
codified and hereinafter cited as 29 C.F.R. �1614.402(a)), and (see 64
Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter cited
as 29 C.F.R. �1614.504(b)), EEOC Order No. 960, as amended.<1>
ISSUE PRESENTED
The issue on appeal is whether the agency breached the settlement
agreement.
BACKGROUND
Complainant filed a formal EEO complaint wherein he alleged that he
was discriminated against on the bases of his race (Caucasian), color
(white), national origin (Italian), sex (male), and in reprisal for his
previous EEO activity when:
1. On July 6, 13, 20, and 22, 1996, he was not allowed to work
non-scheduled days.
2. On September 25, 1996, he was not allowed to report for work early.
3. He was denied overtime on November 1-2, 1996, December 16-20, 1996,
December 23-24, 1996, and January 10, 1997.
4. He was harassed about working overtime on November 1-2, 1996.
5. On December 25, 1996, he was threatened about his restroom privilege
as his supervisor docked him ten minutes pay for not being in his
location working.
6. On January 4 and 11, 1997, he was denied penalty overtime.
The complaint was accepted for investigation. Subsequent to the
investigation, complainant requested a hearing before an EEOC
Administrative Judge. The complaint was resolved by a settlement
agreement entered into on September 9, 1997. The agreement stated
in relevant part that complainant would be compensated for the ten
minutes he used to go to the restroom. The agreement further provided
that complainant would receive five full tour overtime make-ups at the
mutual convenience of himself and the agency. The agreement indicated
that this latter provision was to be effected over a six-month period.
On March 18, 1998, complainant contacted an EEO Counselor and claimed that
the agency had breached the settlement agreement. Complainant stated
that he was not afforded the opportunity to make up overtime and he also
was not paid for the ten minutes of Christmas pay that he was docked.
As a remedy, complainant requested that he be paid for forty hours of
overtime and ten minutes of his Christmas pay.
By memorandum dated August 7, 1998, complainant's supervisor informed the
EEO Office that complainant has been on light duty unable to work overtime
for approximately a three-month period. According to the supervisor,
complainant wished to schedule make-up overtime at his own convenience
and this has an adverse impact on operations. The supervisor further
stated that complainant is now refusing to do the make-up overtimes
based on other issues.
In its final decision dated August 12, 1998, the agency determined that
the settlement agreement has not been breached. The agency stated that
complainant was unwilling to coordinate dates to complete the make-up
overtime. According to the agency, management indicated that they were
attempting to work with complainant in order to establish overtime make-up
dates and that there has been no intention to violate the agreement.
On appeal, complainant states that it is not his responsibility to
schedule days to work because he does not know when there will be work
available. Complainant claims that it is management's responsibility
to notify him when work is available to make-up overtime. According to
complainant, he contacted the Manager, Distribution Operations, on
several occasions to schedule the make-up overtime, but the Manager
never notified him when he could perform the make-up overtime. Further,
complainant claims that he was never compensated for the ten minutes
of Christmas pay that he was docked. Complainant requests that his
complaint be reinstated and remanded for a hearing.
In response, the agency asserts that complainant was on light duty
for three months and was unwilling to coordinate dates to complete the
overtime make-up.
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter
cited as 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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
Volume 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter
cited as 29 C.F.R. �1614.504(b)) provides that the agency shall resolve
the matter and respond to the complainant, in writing. If the agency has
not responded to the complainant, in writing, or if the complainant is not
satisfied with the agency's attempt to resolve the matter, the complainant
may appeal to the Commission for a determination as to whether the
agency has complied with the terms of the settlement agreement or action.
The complainant may file such an appeal 35 days after he or she has served
the agency with the allegations of noncompliance, but must file an appeal
within 30 days of his or her receipt of an agency's determination.
The Commission has consistently held that settlement agreements are
contracts between the complainant and the agency, and 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 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, 381 (5th Cir. 1984).
In the instant matter, complainant claimed that the agency breached the
settlement agreement by not affording him the opportunity to perform the
make-up overtime and by not compensating him for the ten minutes of
Christmas pay that he was docked. We find with regard to that portion of
the settlement agreement dealing with overtime make-up opportunities that
it has not been established that the settlement agreement was breached.
The agreement provided that complainant would receive over a six-month
period five full tour overtime make-up opportunities at the mutual
convenience of himself and the agency. The agency maintains that
complainant has been unwilling to coordinate dates to complete the make-up
overtime. The agency also states that complainant wanted to be scheduled
for overtime at his own convenience, which has an adverse impact on
operations. We find that complainant has not established that the agency
at a minimum discussed extending overtime make-up opportunities with him
during the relevant six-month time period. Complainant also has not refuted
the agency's position that he was unwilling to coordinate dates to complete
the make-up overtime. Although complainant has not received the five
overtime make-up opportunities, we find that the agency's actions with regard
to this term of the agreement do not constitute a breach of the settlement
agreement.
However, as for the compensation due complainant under the agreement,
we find that the agency has submitted no evidence that it has complied
with this term of the agreement. The settlement clearly specifies that
complainant was to be compensated for the ten minutes of pay that he was
docked. In view of there being no evidence to establish compliance, we
find that the agency has breached this term of the agreement. Since none
of the terms of the settlement have been yet fulfilled, we find that
the proper remedial relief is to reinstate the complaint for further
processing. Accordingly, the agency's final decision finding that there
was no breach of the settlement agreement is hereby REVERSED. This matter
is REMANDED for further processing pursuant to the ORDER below.
ORDER
The agency is ORDERED to reinstate the complaint and resume processing
of the complaint from the point processing ceased. Within fifteen (15)
calendar days of the date this decision becomes final, the agency shall
submit a written request for a hearing to the appropriate EEOC District
Office. A copy of the agency's request should be provided to complainant
and must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
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:
February 4, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all Federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.