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.