01a62106
07-10-2006
Gary G. Weightman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gary G. Weightman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A62106
Agency No. 1A-084-0001-04
DECISION
Complainant filed an appeal with this Commission from an agency
determination that it was in compliance with the terms of a September
28, 2005 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The September 28, 2005 settlement agreement provided, in pertinent part,
that:
(4) The Postal Service is an Equal Employment Opportunity Employer
committed to the federal laws governing discrimination and retaliation
in the workplace. The Postal Service will continue to adhere to its
obligations under federal law to provide a non-discriminatory work
environment and to protect its employees from suffering discriminatory
treatment at the workplace;
"#4" Complainant . . . agrees to this agreement with the understanding
that pursuant to [Provision 4, cited above] he will be treated in the same
manner as all similar situated employees in the Kearny LDC Post Office. 1
In January 2006, complainant wrote to the agency claiming breach,
and requesting that the agency specifically implement its terms. 2
Specifically, complainant claimed that the agency failed to treat him
"the same as similar situated employees" when it did not call him for
non-scheduled overtime.
By letter dated December 14, 2005, the Manager of Human Resources
(HR Manager) informed complainant that, based on her inquiry, she
found that the agreement was not violated. The HR Manager noted that
"[r]ecords indicate that complainant has accumulated the highest amount
of overtime, including penalty overtime when compared to other expediters
in your section."
Thereafter, the HR Manager wrote to complainant again, stating that an
independent inquiry into the matter showed that management scheduled
overtime as the workload warranted. Specifically, the HR Manager noted
that no employees worked a full day of overtime on complainant's rest
day, and on the days at issue, there were enough expeditors scheduled
so overtime was not necessary on complainant's rest day.
Finally, on February 2, 2006, the EEO ADR Coordinator wrote to complainant
in regard to his January 2006 correspondence. The EEO official determined
that complainant's concerns constituted subsequent acts of discrimination
and therefore should be treated as separate claims of discrimination,
rather than allegations of breach. Complainant was informed that his
January 3, 2006 letter would be considered the date of his initial EEO
contact, and pre-complaint forms were provided.
On appeal, complainant argues that "[t]he agency wants another bite of
the apple" by expecting him to file "a brand new EEO case on the overtime
denial." Complainant argues further that the agency's failure to call
him in on light mail days for non- scheduled overtime, while calling in
African-American expeditors, violates the provision identified above as
"#4."
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 O 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, complainant contends that the agency violated the
settlement agreement when he was not offered non-scheduled overtime
on January 2, 9 and 16, 2006.3 The Commission agrees with the agency
that these subsequent events constitute new claims of discrimination.
The agency properly advised complainant to seek counseling if he wished
to pursue these matters through the EEO process.4
Moreover, we find that the provision (identified as "#4") requiring the
agency to treat complainant "in the same manner as all similar situated
employees in the Kearny LDC Post Office", along with the language in
provision (4) ("the Postal Service will continue to adhere to its
obligations under federal law to provide a non-discriminatory work
environment . . ."), do not require the agency to incur any legal
detriment at all. These provisions fail to confer on complainant
any benefit that he was not already entitled to as a matter of law.
Therefore, we find that provision (4), including the additional language
added at the bottom of page two of the agreement (#4), is void. However,
because consideration was exchanged through other provisions of the
agreement, we find that the entire settlement is not invalid. Instead,
the agreement is reformed without the provisions at issue.
The agency's decision finding the settlement agreement was not breached
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 10, 2006
__________________
Date
1 The agreement also contained other provisions, including the payment
of $200.00 to complainant.
2 While the agency identifies correspondence from January 3 and 19,
2006, the record also contains prior letters, dated October 17, 2005
and December 3, 2005, wherein complainant raised the same breach claim,
relating to lack of overtime.
3 Although additional dates are included in the record, complainant
limits the focus of his allegations to these dates in his appeal
statement.
4 The record reflects that complainant has sought counseling and filed
a formal complaint. Dated April 4, 2006. Therein, complaint claimed
discrimination with respect to a 7-Day Suspension "occurring over the
discriminatory scheduling of expeditors which violation a September 2005
EEO Settlement...."
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01A62106
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A62106