Horace Miles, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity CommissionJan 26, 2009
0120070685 (E.E.O.C. Jan. 26, 2009)

0120070685

01-26-2009

Horace Miles, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.


Horace Miles,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Southwest Area),

Agency.

Appeal No. 0120070685

Agency No. 1G-772-0001-06

DECISION

Complainant filed an appeal to this Commission after an Administrative

Judge (AJ) dismissed his complaint on the basis that the parties had

signed a settlement agreement regarding his complaint. The agency did

not issue a final order after the AJ issued the order of dismissal.

In a formal EEO complaint signed February 11, 2006, complainant alleged

that the agency subjected him to discrimination on the basis of race

when on November 19, 2005, the agency searched his vehicle and locker,

and subsequently, he was issued a Notice of Removal charging him with

"Improper Conduct-Removal Mail Items from Mail Stream/Failure to Follow

Instructions," effective January 20, 2006.

The record reveals that complainant filed a grievance in which he alleged

that in November 2005, the agency removed him for allegedly possessing

postal property in his vehicle.

Subsequently, the parties entered into a settlement agreement that stated

that the parties agreed to settle the grievance. The settlement agreement

further stated, in pertinent part, the following:

1. The Notice of Removal dated December 14, 2005, for Improper

Conduct-Removing Mail Items from the Mail Stream/Failure to Follow

Instructions, issued to [complainant], is hereby reduced to a time-off

suspension.

2. The employee is to be reinstated back to his former position no later

than April 29, 2006.

3. [Complainant] is to be back paid a lump sum of $5,928.52. This back

pay settlement fully resolves any and all past or future claims to back

pay regardless of circumstance. The payment for this amount will be

initiated at the Houston District Office.

It is further agreed that the above Resolution is reached on a

non-precedent setting basis; it does not constitute a waiver of either

party's position on this or on other similar issues or cases, and it

is not to be used, cited, or referenced by either party in any future

case which may arise. This Resolution fully resolves all EEO, MSPB,

NLRB, or any complaints in any other forum that are associated with

this grievance. The parties also agree that there are no outstanding

and unresolved information requests associated with this grievance.

This Resolution was made in good faith and was not made under threats,

coercion, or guile by either party.

Complainant subsequently asserted to the AJ that the last paragraph of

the settlement agreement was not included in the version of the agreement

that he had signed. On September 6, 2006, the AJ issued a show cause

order which directed complainant to produce the copy of the settlement

agreement that complainant maintained he had signed. Complainant failed

to produce the document as ordered, and the AJ dismissed complainant's

complaint on September 14, 2006.

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).

We determine that the grievance settlement agreement resolved

complainant's EEO complaint because complainant's settled grievance and

EEO complaint both concern complainant's removal, and the settlement

agreement contains terms specifically tailored to remedy complainant's

EEO complaint, including the reduction of the removal to a suspension;

reinstatement of complainant; and, back pay. Thus, we find that

complainant settled his EEO complaint through the grievance settlement

agreement.

Regarding complainant's contention that the settlement agreement was

altered, we find that complainant has failed to provide any evidence

to substantiate his claim, despite being given ample opportunity to

do so. Moreover, even on appeal, complainant failed to provide any

evidence supporting his claim that he signed a different version of

the agreement.

CONCLUSION

Accordingly, the Commission AFFIRMS the AJ's dismissal of complainant's

complaint.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

_January 26, 2009_________________

Date

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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