01a24288
03-27-2003
Willie Pender, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Willie Pender v. United States Postal Service
01A24288
March 27, 2003
.
Willie Pender,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A24288
Agency No. 4D-230-0141
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated July 24, 2002, finding that it was in
compliance with the terms of an August 20, 1998 settlement agreement.
The August 20, 1998 settlement agreement provided, in pertinent part,
that:
(1) We agree that prior to October 19, 1998, [complainant] will be relief
box clerk;
(2) We agree beginning October 19, 1998, box clerk will rotate on
Saturdays following paydays between [employee A] and complainant;
By letter to the agency dated July 17, 2002, complainant alleged that the
agency breached the settlement agreement, and requested that the agency
implement its terms. Specifically, complainant alleged that both he
and the other employee rotating the box clerk position were taken out
of the box section, instead of being rotated in the box clerk job every
two weeks pursuant to provision (2).
In its July 24, 2002 decision, the agency concluded that it had not
breached the agreement. Specifically, the agency stated that it had
rotated the box clerk assignment between complainant and employee A,
but that complainant bid on Saturday and Sunday as his non-scheduled
work days, thereby precluding the agency from implementing provision (2).
The agency also stated that although complainant had indicated he had been
removed from the box section, the agency had no affirmative obligation
pursuant to the settlement agreement to either retain complainant in the
box section, or to rotate complainant's assignment on any day other than
Saturdays following paydays.
As part of the record, the agency includes an affidavit from complainant's
supervisor stating that �the only change in work assignments has been
that [complainant] does not work a full eight hours of his tour in the
box section.� Additionally, the affidavit states that �there have been
no changes that would effect [complainant's] pay or schedule.�
The record also includes a letter from employee A, stating that he
and complainant shared the box clerk position while switching positions
every two weeks as a result of the settlement agreement. The letter also
specifically states that in July 2002, complainant's supervisor �issued
a letter to [complainant] and me stating that our new assignments would
not be as Box Clerk,� and that after reminding the supervisor of the
terms of the settlement, the supervisor told them that they�would work
where [they] were told to work and he had no interest in honoring the
agreement.� Employee A also noted that �both the President and Clerk
Craft Director of our Union� attended the meeting where the statement
was made by complainant's supervisor.
On appeal, complainant asserts that the responsible manager has taken
him out of the box clerk position and assigned him to separate parcels
every day. Complainant also asserts that the manager said that he is
not honoring the agreement he signed �because now he has changed his
mind.� In response, the agency cites the supervisor's affidavit stating
that although complainant is not working a full eight hours in the box
section, he has not been totally removed from the box section.
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 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).
We find that there is insufficient evidence in the record to determine
if the agency breached the August 20, 1998 settlement agreement. While
complainant and employee A state that they have been removed from the
box clerk position rotation, the supervisor purportedly implementing the
change states that the only change in complainant's work assignment is
a less than eight hour schedule as a box clerk. Moreover, the agency's
decision in response to complainant's breach claim does not directly
address whether complainant was removed from his box clerk position,
and there is no evidence in the record of complainant's purported bid
for Saturday and Sunday as his non-scheduled work days. Given these
circumstances, we are unable to determine the factual circumstances
surrounding the alleged breach, and, consequently, whether a breach
occurred. Accordingly, the agency's decision is VACATED, and the matter
is REMANDED to the agency for further processing in accordance with this
decision and Order below.
ORDER
The agency is ORDERED to take the following actions:
(1) The agency is ordered to investigate whether complainant and employee
A were removed from the rotating box clerk position outlined in the
August 20, 1998 settlement agreement, and if so, whether the removal
constitutes a breach of provision (2) of the agreement. As part of its
investigation the agency shall also investigate the issue of whether
complainant bid for Saturday and Sunday as his non-scheduled work days,
and the effect of such a bid on the settlement agreement if applicable.
The agency shall supplement the record with any relevant documentation
obtained as a result of its investigation, specifically including
affidavits from complainant and his supervisor, and employee A.
(2) Within 30 calendar days of the date this decision becomes final,
the agency shall issue a new determination as to agency breach of the
settlement agreement that specifically addresses complainant's alleged
breach of provision (2).
.
A copy of the agency's new determination concerning breach of the
settlement agreement must be sent to the Compliance Officer as referenced
below.
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 27, 2003
__________________
Date