01974857
01-14-1999
Doug McNearney, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Doug McNearney v. United States Postal Service
01974857
January 14, 1999
Doug McNearney, )
Appellant, )
) Appeal No. 01974857
v. ) Agency Nos. 4F-950-2969-93
) 4F-950-1131-94
William J. Henderson, ) 4F-950-1105-94
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On May 28, 1997, appellant filed a timely appeal with this Commission
from an April 30, 1997 final agency decision. In its final decision,
the agency determined that it did not breach paragraphs 2c, 2f, or 5
of the settlement agreement. See 29 C.F.R. ��1614.504, .402(a); EEOC
Order No. 960, as amended.
In exchange for withdrawing three complaints, appellant and the agency
entered into a settlement agreement on January 25, 1995. The settlement
agreement provided, in pertinent part, as follows:
2a. No reprisal action will be taken against [appellant].
2c. The Tulare Postmaster will prepare and disseminate a memorandum to
all employees in the Tulare Post Office advising them that no Manager or
employee should be discussing an EEO complaint or any other information
protected by the Privacy Act of 1974 with another, unless they have
a need to know, are preparing a case, being called as a witness, or
involved in the EEO processing of that complaint. (This document will
be signed by all Tulare Post Office employees.)
2f. The Tulare Postmaster will prepare and disseminate a memorandum to
all employees in the Tulare Post Office advising them that telephones
may be used only during breaks, lunches or during emergencies in the
Tulare Office by craft employees. (This document will be signed by all
Tulare Post Office employees.)
The Agency and the Complainant agree that the fact of this settlement
and all terms contained in it shall be kept confidential and they agree
that these matters will not be disclosed or discussed with other Agency
employees except the Complainant's representative and Agency employees
needing to know the information as part of their official duties.
In July 1995, appellant alleged that the agency was in breach of
provisions 2a, 2c, 2f, and 5 of the agreement. Specifically, appellant
alleged that Employee A (a Union Shop Steward) stated that he met with
the Tulare Postmaster to discuss the Tulare telephone policy regarding
clerks because carriers were allowed to use the telephones and clerks
were not. When asked the reason for the difference in policies,
the Tulare Postmaster told Employee A that the policy for the clerks
resulted from an EEO decision and the policy for the carriers resulted
from the settlement of a grievance. Employee A stated that he asked the
Tulare Postmaster whether the decision was to give clerks a different
policy than other employees and the Postmaster answered affirmatively.
Employee A also stated that the Tulare Postmaster made comments such as
he "won't say any names--you know who" and "ask around, you'll find out."
Appellant provided the agency with a copy of a statement from Employee A.
Furthermore, appellant alleged that provision 2a was breached when he
was issued a letter of warning on June 7, 1995.
EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties shall be
binding on both parties. Settlement agreements are contracts between the
appellant 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 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 O
v. U.S. 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 v. Building Engineering Services, 730 F.2d 377
(5th Cir. 1984).
As an initial matter, the Commission notes that the present matter
was before the Commission previously in EEOC Appeal No. 01960704.
In the prior decision, the Commission found that appellant's allegation
regarding the letter of warning was a new act of alleged discrimination,
rather than a breach allegation, and that appellant had already initiated
the EEO process thereon. With regard to provisions 2c, 2f, or 5 of the
settlement agreement, since the agency offered no evidence in response
to appellant's allegation of breach, the Commission vacated that part
of the agency's final decision finding no breach of paragraphs 2c, 2f,
or 5 and remanded the allegation of breach to the agency to conduct a
supplemental investigation. In relevant part, the agency was ordered
to take the following actions:
(1) obtain evidence of its compliance with paragraphs 2c and 2f,
including, but not limited to, copies of the memoranda cited therein,
signed by all employees; and such other evidence supporting the
implementation of different telephone policies for clerks and carriers;
(2) obtain evidence of its compliance with paragraph 5, including,
but not limited to, an affidavit from Employee B [Tulare Postmaster]
responding to the statement from Employee A [union shop steward]; and
(3) to issue a final decision on appellant's allegation that it breached
paragraphs 2c, 2f, or 5 of the settlement agreement.
The Commission notes that appellant does not appear to be asserting
on appeal that the agency is in breach of provisions 2c and 2f. In a
June 29, 1997 letter submitted on appeal, appellant, through counsel,
acknowledges that agency memoranda were prepared as required by provisions
2c and 2f of the settlement agreement.<1> On appeal, appellant
specifically contends that the agency is in breach of provision 5, that
the agency failed to fully investigate the alleged breach of provision 5
on remand by failing to obtain any additional information from Employee A
(the Union Shop Steward), and by limiting its investigation of the breach
of provision 5 to obtaining an affidavit from the Tulare Postmaster only.
Thus, appellant requests that the agency be ordered to implement provision
5.
The present record contains the affidavit of the Tulare Postmaster.
Therein, he stated that he met with Employee A to discuss union
problems and the local telephone policy as it affected the clerks in
his unit. At the time, the telephone policies for clerks and carriers
were different. He made the statement that the clerk's telephone policy
was a result of an EEO decision. The Tulare Postmaster denied making
the other comments attributed to him in Employee A's statement.
Upon review, we find that the plain language of paragraph 5 of the
settlement agreement required appellant and the agency to keep both
the fact and the terms of the settlement agreement confidential, except
that the terms of the agreement could be disclosed to those employees of
the agency and representatives of appellant with a need to know as part
of their official duties. We find that the Postmaster's statements do
not amount to a breach of the confidentiality provision. His statement
that the telephone policy was the result of an EEO decision was general
in nature. The Postmaster's statement did not reveal that there was a
settlement agreement nor did he in any way identify appellant or even
connect him to the telephone policy. Moreover, it is not disputed that
the statements occurred during a meeting with a union steward regarding
the Tulare's telephone policy and were made in order to explain to a
labor representative the reason for the existence of different telephone
policies for Tulare's employees.
Finally, although appellant also raised questions concerning the
supplemental investigation on remand, the Commission notes that the
record reveals that as of August 30, 1996, Employee A was no longer
employed by the agency. Further, even accepting the statement of Employee
A as true, his statement does not support a finding of breach of the
confidentiality provision. The comments about asking around, if true, may
have been unwise and inappropriate, but did not result in a breach.
Accordingly, consistent with our discussion herein, the agency's final
decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is
received by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Jan. 14, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1The Commission notes that the record contains two Memoranda, dated
February 9, 1995, from the Tulare Postmaster. One Memorandum, entitled
"EEO Policy" concerns the discussion of EEO complaints and privacy
matters and relates to paragraph 2c of the settlement agreement.
The second Memorandum, entitled "Telephone Policy," gives notice of
the policy regarding telephone usage for craft employees and relates to
paragraph 2f of the agreement. Both Memoranda are signed by employees.
A listing of employees is also contained in the record. The record
also contains an August 30, 1995 Memorandum from the Tulare Postmaster
to the agency's Labor Relations Specialist to which he attached his two
February 9, 1995 Memoranda.