Clarence Benoit, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Northeast/New York Metro Area), Agency.

Equal Employment Opportunity CommissionApr 28, 2000
01a00233 (E.E.O.C. Apr. 28, 2000)

01a00233

04-28-2000

Clarence Benoit, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Northeast/New York Metro Area), Agency.


Clarence Benoit, )

Complainant, )

)

v. ) Appeal No. 01A00233

) Agency No. 4A-110-010799

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(Northeast/New York Metro Area), )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated August 12, 1999, finding that it was in

compliance with the terms of the April 20, 1999 settlement agreement into

which the parties entered.<1> See 64 Fed. Reg. 37,644, 37,659, 37,660

(1999)(to be codified and hereinafter referred to as EEOC Regulation 29

C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b); and 64 Fed. Reg. 37,644,

37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

The settlement agreement provided that:

(1) Complainant's tour of duty before this date was 8 a.m. - 4 p.m. Monday

to Friday. Due to the need of the complainant to have physical therapy

several times per week, the management official was able, through the

injury compensation office, to immediately change complainant's tour of

duty to 8 a.m. to 4:30 p.m. Saturday to Wednesday - with Thursdays and

Fridays as days off.

(2) Both complainant and the management official agree to work together

with a new spirit of cooperation.

(3) The management official will try to listen in a new way in the

future.

(4) The complainant will go first to his supervisor with any problem.

If this is not successful, he will call attention to the problem to

the management official.

By letter to the agency dated October 8, 1999, complainant alleged that

the agency was in breach of the settlement agreement, and requested that

the agency specifically implement its terms. Specifically, complainant

alleged that the following �harassment tactics� have occurred under

the management official's leadership: (1) name calling- complainant was

called a �coconut nigger� by an a person whose employment position at the

agency was not identified; (2) the management official told complainant

he could not hit �code 959" and asked complainant to go home without

a specific explanation; (3) at the time of complainant's accident,

complainant alleges he was refused medical attention; (4) complainant had

�no say� to bid for the assigned days off; (5) complainant was refused

flexible time to visit his doctor and therapist, and therefore had to

give up his therapy; (6) there exist other employees in the facility

(who are white) and receive flexible hours; and (7) complainant has been

punished constantly for reporting racial problems that occurred in the

facility to the EEO. In addition, that the working relationship between

complainant and the management official had not improved.

In its August 12, 1999 FAD, the agency concluded that in accordance

with the settlement agreement, complainant work schedule was adjusted

to accommodate his need for physical therapy. The management official

stated that the working relationship between the parties had improved

since the agreement was signed. Finally, the agency stated that new

issues presented in complainant's letter were not breach issues and

should be handled in the counseling process. Therefore, finding no breach,

the agency concluded that the complainant's EEO complaint would not be

reinstated.

64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

referred to as 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).

In the instant case, the record supports the agency's conclusion that

it is in compliance with the settlement agreement. The record shows,

by letter dated April 20, 1999, that complainant accepted a limited-duty

job assignment offer containing a work schedule adjusted to accommodate

his need for physical therapy as set forth by complainant's treating

physician. Finally, involving alleged acts of harassment, allegations

that subsequent acts of discrimination violate a settlement agreement

are processed as separate complaints under 29 C.F.R. � 1614.504(c).

The complainant was properly advised to bring his new claims of

discrimination to the attention of an EEO Counselor. In light of the

above, we affirm the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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 (S1199)

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 (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:

April 28, 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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Equal Employment Assistant Date

1On 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.