David A. Gomez, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 19, 2000
01995103 (E.E.O.C. Jul. 19, 2000)

01995103

07-19-2000

David A. Gomez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


David A. Gomez v. United States Postal Service

01995103

July 19, 2000

David A. Gomez, )

Complainant, )

)

v. ) Appeal No. 01995103

) Agency No. 1F-951-0013-99

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

Complainant timely appealed the agency's decision not to reinstate

his complaint of unlawful employment discrimination that the parties

had settled.<1> See 64 Fed. Reg. 37,644, 37,659-37,660 (1999) (to

be codified and hereinafter referred to as 29 C.F.R. � 1614.402(a),

� 1614.405, and � 1614.504).

The record indicates that on March 5, 1999, the parties entered into

a settlement agreement resolving complainant's pre-complaint filed on

January 28, 1999, concerning racial remarks and slurs written on his

work area. The settlement agreement provided, in part, that:

Stand-ups will be held with all employees concerning graffiti, racial

slurs, and defacing of government property on Tour I.

By letter dated March 23, 1999, complainant alleged that the agency

breached the settlement agreement. Specifically, complainant indicated

that the agency failed to give stand-ups to all employees on Tour I.

On May 12, 1999, the agency issued its decision stating that it complied

with the terms of the settlement agreement. In her letter dated May

6, 1999, the Manager of Tour I stated that stand-ups were conducted in

accordance with the settlement agreement. In support of her contentions,

the Manager submitted a copy of Tour I supervisors' memoranda indicating

that stand-ups, concerning graffiti, racial slurs, and defacing of

government property, were held at pay location 264 on April 16, 1999;

operation 119 on March 5, 1999; pay locations 122, 121, 120, 125, and

127 on April 22, 1999; and pay locations 123 and 129 on May 6, 1999.

On appeal, complainant contends that based on a random survey of employees

in all operations, over 60% of Tour I employees have not had stand-ups,

and no stand-ups were held until he claimed the agency's noncompliance

with the settlement agreement. Complainant also states that in May 1999,

he was assigned out of schedule overtime on Tour II.

EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant

believes that the agency failed to comply with the terms of a settlement

agreement, the complainant should notify the Director of Equal Employment

Opportunity, in writing, of the alleged noncompliance with the settlement

agreement, within thirty (30) days of when the complainant knew or should

have known of the alleged noncompliance. The complainant may request that

the terms of the settlement agreement be specifically implemented or,

alternatively, that the complaint be reinstated for further processing

from the point processing ceased.

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 final decision.

The Commission has 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, and not some unexpressed intention, that

controls the contract's construction. Eggleston v. Department of Veterans

Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the

Commission generally follows the rule that if a 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 v. Building Engineering Services,

730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule

when interpreting settlement agreements. The Commission's policy in

this regard is based on the premise that the face of the agreement best

reflects the understanding of the parties.

Upon review, the Commission finds that the agency did not breach the

settlement agreement at issue. The agency submitted a copy of Tour I

supervisors' statements clearly indicating that stand-ups were conducted

in accordance with the settlement agreement. On appeal, complainant

contends that the agency did not conduct stand-ups until he claimed

noncompliance with the settlement agreement. However, the Commission

notes that the settlement agreement did not provide for the specific time

period during which the agency was required to conduct stand-ups. The

Commission finds that the agency's completion of stand-ups by May 6,

1999, approximately 60 days after the settlement agreement, was within

a reasonable period of time. Furthermore, the Commission notes that

complainant's assertion, i.e., over 60% of Tour I employees have not

had stand-ups, is not supported by any evidence in the record.

With regard to complainant's reprisal claim, i.e., concerning his

assignment of out of schedule overtime on Tour II, or further

discrimination on the part of the agency violated the settlement

agreement, the Commission finds that the matter should be processed

as a separate complaint under 64 Fed. Reg. 37,644, 37,656 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.106)

rather than as a claim of noncompliance with a settlement agreement.

See also Anthony v. Department of Education, EEOC Request No. 05910142

(April 18, 1991).

Accordingly, the agency's decision not to reinstate the settled matters

is AFFIRMED.

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

July 19, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

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.