David F. Pratt, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 15, 2000
01991001 (E.E.O.C. Feb. 15, 2000)

01991001

02-15-2000

David F. Pratt, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


David F. Pratt v. United States Postal Service

01991001

February 15, 2000

David F. Pratt, )

Complainant, )

)

v. ) Appeal No. 01991001

) Agency No. 4E-870-0160-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

The Commission finds that the agency properly denied it had breached a

May 12, 1998 settlement agreement (SA, or the agreement), for the reasons

set forth below.<1> Complainant has offered no arguments in his November

13, 1998 timely appeal of the agency's October 27, 1998 final decision

(FAD) to persuade the Commission to the contrary. 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); EEOC Order

No. 960, as amended.

In the instant case, the SA at issue resolved a July 15, 1997 formal

EEO complaint wherein complainant claimed that his supervisor (SPV),

based on reprisal,<2> denied him access to incoming phone calls. The SA,

in pertinent part, provided that the agency would treat complainant the

same as all other employees regarding phone policy. In an undated letter,

which the agency received on September 1, 1998, complainant claimed that

SPV was not in compliance with the SA. Complainant alleged that SPV

"is retaliating against me by starting to restrict my use of the phone

and treating me differently from the other letter carriers at the Uptown

station." Complainant cited August 21, 1998, as the date of the event

that gave rise to his claim of breach.

The FAD cited the purported comments of SPV to the effect that, at the

time of the alleged incident, there was a business-related meeting in

the office and complainant was advised by SPV to use the phone on SPV's

desk. According to the FAD, SPV also stated the following in response to

complainant's assertion of breach: (1) all employees at the Uptown Station

have been told to limit all phone calls to not more than three minutes;

(2) all calls should be taken at SPV's desk and not in the office; (3) the

policy regarding official union business phone calls has been explained

to complainant, and he was told to obtain managerial permission before

receiving such calls while on the clock; and (4) all employees have been

informed of agency policy pertaining to personal phone calls. Finally,

the FAD averred that the agency had the right to control complainant's

use of the telephone for official union business while on the clock,

but that complainant had not been denied use of the telephone for either

personal emergencies or for union business.

The gravamen of complainant's appeal is that, in violation of the SA,

he is the only employee not permitted access to the telephone. He

contends that SPV ordered him not to use the phone without SPV's prior

permission, authorization not required of other employees. With regard

to the alleged incident of August 21, 1998, complainant denies that

there was a business meeting at the time. In support of his appeal,

complainant provided the names of numerous alleged witnesses. However,

complainant provide no statements from these purported witnesses.

The agency did not respond to complainant's appeal.

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).

Finally, we note that the burden of proving an agency has breached an

agreement is on the complainant. See. Moore v. Department of the Navy,

EEOC Request No. 05930694 (April 7, 1994).

In the present case, the Commission finds that complainant has failed to

meet his burden of proving the agency breached the SA. As we indicated

above, despite the names of many witnesses cited in support of his claim

of breach, complainant did not provide a single statement from any

purported witness to any incident referenced by complainant wherein SPV

denied him phone access. Absent such documentation, or other probative

evidence, complainant has failed to persuade the Commission that the FAD

erred in denying the agency was in breach of the SA. Accordingly, the

FAD is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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 (OF) 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). 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:

February 15, 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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

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.

2See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �

2000e et seq.