0120110550
12-05-2012
Mario Martinez-Jimenez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Mario Martinez-Jimenez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120110550
Agency No. 4C-170-0037-10
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated September 30, 2010, finding that it was in compliance with the terms of the June 24, 2010 settlement agreement into which the parties entered. For the reasons set forth, we AFFIRM the Agency's decision, finding no breach of the settlement agreement.
BACKGROUND
The settlement agreement provided, in pertinent part, that (quotations original):
1. To resolve issue(s) surrounding the 5/24/10 non-scheduled date, Complainant will advise the Customer Service Supervisor (Supervisor) by 7/24/10 of an alternate date for taking annual leave. Complainant will get priority to choose this one day off.
2. To resolve issue(s) surrounding the day (Sunday) where [Complainant] worked for [Person A], [Person A] will work for [Complainant's] next scheduled Sunday as agreed upon by the parties.
3. [Persons B and C] agree to respect Complainant's personal space, specifically by not touching [Complainant] unnecessarily [and] "honoring" a 3 foot space as much as possible, recognizing emergencies or other actions may be necessary or occur.
4. As to the issue of "short" paychecks due to failure of input of annual leave that was very frustrating [and] detrimental to [Complainant], management cannot guarantee this will not occur, but will take all steps to avoid this happening [with] regard to [Complainant's] pay in the future. [Complainant] will advise [Person C], [and] if not satisfied, [Person B] of any problems [with] his pay.
In a letter dated August 12, 2010, Complainant alleged that the Agency was in breach of provision 3 of the June 24, 2010 settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that, on July 18, 2010, City Carrier A approached his case and asked about Complainant's knowledge of the route. The Supervisor [Person C] told City Carrier A to maintain a 3 foot distance from Complainant. Complainant believed that the 3 foot distance pertained to the Supervisor [Person C] and the Postmaster [Person B]. Complainant claimed that the information the Supervisor relayed to City Carrier A was confidential and should not have been shared with City Carrier A or anyone else. To resolve the breach, Complainant requested that the Supervisor maintain a 3 foot distance when speaking with him unless it was an emergency situation.
In a telephone call to the Dispute Resolution Coordinator on September 28, 2010, Complainant alleged that the Agency was in breach of provision 1 of the June 24, 2010 settlement agreement, and requested that the Agency specifically implement its terms. Complainant said that he was charged Leave Without Pay (LWOP) on September 18, 2010, the day Complainant had chosen as his alternative leave date in accordance with this stipulation.
In its decision, the Agency concluded that the settlement agreement had not been breached.
On appeal, Complainant argued that there was no mention, verbally, or written at the Resolve Employment Disputes, Reach Equitable Solutions Swiftly (REDRESS) meeting, or even the slightest indication that such written agreement would apply to other employees. Complainant asserted that he expressed concerns to the EEO office regarding retaliation by the Supervisor.
In response to Complainant's appeal, the Agency stated that Complainant does not state that the Supervisor violated the personal space by entering the 3 foot area herself, but only that the Supervisor advised others not to enter the space. The Agency said that the managers agree that they will maintain a professional distance with all employees. The Agency asserted that Complainant admitted, in his appeal, that the LWOP was corrected the following day when a pay adjustment was made. With respect to Complainant's claim of retaliation by the Supervisor, the Agency noted that Complainant filed a formal complaint in case number 4C-170-0042-10 on September 27, 2010, with the basis of reprisal.
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).
Regarding provision 3, we find that Complainant has failed to show that the Agency breached this provision of the June 2010 settlement agreement. The record reveals that, in an affidavit dated September 17, 2010, the Supervisor stated that there was no employee named as City Carrier A. On an unspecified date, the Supervisor said that she saw City Carrier B step out of Complainant's case. The Supervisor asserted that she told City Carrier B to give Complainant some space after he questioned why. The Supervisor claimed that this was the only statement she made to City Carrier B. The Supervisor articulated that her understanding of the agreement was that she and the Postmaster were suppose to respect Complainant's personal space as much as possible and correct the situation if it was not happening.
In an affidavit dated September 27, 2010, the Postmaster stated that, on the day in question, the Supervisor observed City Carrier B in Complainant's case. The Postmaster claimed that the Supervisor immediately went to Complainant's case, ordered City Carrier B out of the case, and indicated that employees were to stay out of Complainant's personal space. The Postmaster asserted that he understood the settlement agreement to say management would respect Complainant's personal space, including not touching Complainant and honoring a 3 foot space as much as possible. The Postmaster said that he told Complainant it was his interpretation that the agreement pertained to all employees not just him and the Supervisor.
The Commission finds no breach of the 3 foot space rule of provision 3 or of any confidentiality provision. Complainant does not claim that Persons B or C violated the 3 foot space rule and appears to claim that the 3 foot space rule only applies to Persons B and C.
With respect to provision 1, we find that the Agency has substantially complied with this provision of the June 2010 settlement agreement. The record reveals that, on a Time and Attendance Collection System (TACS) AdjustPay Adjustment Certification dated September 28, 2010, the Postmaster processed a pay adjustment for Complainant to change the LWOP to annual leave.
CONCLUSION
The Agency's decision finding no breach of the settlement agreement 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), 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 5, 2012
__________________
Date
2
01-2011-0550
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110550