01992558
07-20-2000
George L. Tillman, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
George L. Tillman v. United States Postal Service
01992558
July 20, 2000
George L. Tillman, )
Complainant, )
)
v. ) Appeal No. 01992558
) Agency No. 4-H-320-0061-98
)
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 August 25, 1997, the parties entered into
a settlement agreement resolving an EEO complaint filed by complainant,
a Manager Customer Service, EAS-20. Paragraph 1.D of the settlement
agreement provided that:
An �AP� operations review would be conducted by an operations manager not
employed at Tallahassee and acceptable to complainant and the Postmaster
of Tallahassee. This review will last the entire FY 1998 at a minimum.
This review will begin on the AP following complainant's return to Leon
Station.
Thereafter, by letter dated November 5, 1997, complainant alleged that the
agency breached the August 25, 1997 settlement agreement. Complainant
also alleged that on October 31, 1997, he received an unacceptable EAS
merit performance evaluation for the period from September 14, 1996
to September 12, 1997. The record indicates that complainant filed a
formal complaint, dated February 25, 1998, with regard to the October
31, 1997 evaluation, which was accepted and investigated by the agency.
The record indicates that this complaint is pending for a hearing before
an EEOC Administrative Judge.
The record also indicates that on February 3, 1998, the parties entered
into a settlement agreement resolving complainant's breach claim, which
provided, in part, that:
Paragraph 1.D of the August 25, 1997 settlement agreement would be
implemented in the following manner: (A) an identified individual would
assemble a list of Postmasters, Station Managers, and Customer Service
Analysts not employed in Tallahassee and present this list for approval
by the Postmaster of Tallahassee and complainant; (B) the individual
would establish an AP schedule for one of these persons to conduct a
total review (functions 2 and 4) on Leon Station; these individuals would
rotate doing the review; and the first individual would review �AP 1 -
5,� subsequent individuals would review one AP.
Complainant understands that the Postmaster would continue the
cross-training of supervisors until every supervisor who applied for the
Station Managers position has been afforded a 90 day opportunity to be
trained for that position prior to posting.
Thereafter, by letter dated June 29, 1998, complainant alleged that the
agency breached the February 3, 1998 settlement agreement. Specifically,
complainant alleged that on March 20, 1998, he was taken out of his
position as Manager of Customer Services, Level 21 at Leon Station;
he was assigned to a lower level detail; and he was denied his merit.
On December 15, 1998, the agency issued its final decision stating
that it did not breach the February 3, 1998 settlement agreement.
Specifically, the agency indicated that it implemented paragraph 1.(A)
of the settlement agreement from November 3, 1997 to June 19, 1998.
The record contains the Postmaster of Tallahassee's statement dated
March 10, 1998, wherein he stated that complainant was being reviewed
each AP by a different manager, other than himself. The Postmaster also
stated that the selection of these managers was done by the individual,
identified in the settlement agreement, and agreed to by complainant.
On appeal, complainant, reiterating his arguments previously made,
contends that the Postmaster continues to move supervisors around beyond
90 days.
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 complainant's claims concerning
his assignments and merit evaluation are beyond the scope of the terms
of the settlement agreement. Furthermore, although complainant contends
on appeal that the Postmaster moved supervisors around beyond 90 days,
there is no evidence in the record that the Postmaster failed to continue
the cross-training of supervisors until every supervisor who applied for
the Station Managers position has been afforded a 90 day opportunity to
be trained for that position prior to posting.
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 20, 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.