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.