01992312
02-08-2000
James E. Fuccillo, )
Complainant, )
)
v. ) Appeal No. 01992312
) Agency No. 4-B-028-1087-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's December 28, 1998 letter of
determination dismissing Complainant's breach of settlement agreement
claim, is proper pursuant to the provisions of 64 Fed. Reg. 37,644,
37,660 (1999) (to be codified and hereinafter referred to as 29
C.F.R. �1614.504).<1>
The record shows that on January 18, 1996, Complainant reached a
settlement agreement with the agency. The agreement provided that
�the reference citing that [Complainant] will attend sexual harassment
training will be taken off from [his] individual performance assessment
(PS Form 8183X) dated May 26, 1995".
By letter dated December 2, 1998, Complainant asked the agency to
reinstate his complaint alleging that the settlement agreement had been
breached. Complainant specifically claimed that the language used in
the June 23, 1998 settlement agreement of another employee's grievance,
breached the terms of his own settlement agreement. The record shows
that the June 23, 1998 grievance settlement that involved an agency
employee formerly assigned to [Complainant's] office provided that �the
Postal Service reaffirms its commitment to provide a harassment free
environment and to provide ongoing training in this regard�.
By letter dated December 28, 1998, the agency determined that no breach
had occurred because �the language in question was not directed at
[complainant]�. Moreover, the agency found that pursuant to the terms of
complainant's settlement agreement, the reference to sexual harassment
training, that was addressed in complainant's settlement agreement, had
been removed from Complainant's 1995 individual performance assessment.
The regulation set forth at 64 Fed. Reg 37,644, 37, 660 (1999) (to be
codified and hereinafter cited as 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. If the complainant believes that the agency
has failed to comply with the terms of a settlement agreement, the
complainant shall notify the EEO Director, in writing, of the alleged
noncompliance within 30 days of the date 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.
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
(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th
Cir. 1938). In reviewing settlement agreements to determine if there is
a breach, the Commission is often required to ascertain the intent of the
parties and will generally rely on the plain meaning rule. Wong v. United
States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing
Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,
1991)). This rule states that if the writing appears to be plain and
unambiguous on its face, then its meaning must be determined from the
four corners of the instrument without any resort to extrinsic evidence
of any nature. Id. (citing Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984)).
The settlement agreement in the instant case provided for an affirmative
agency obligation to delete a reference to Complainant attending a
sexual harassment training session from his individual performance
assessment. The record reflects that the agency has met this obligation,
and Complainant has failed to provide evidence sufficient to contradict
the agency's finding. A review of the record persuades the Commission
that no breach has taken place. Complainant's allegation that the
agency breached the settlement agreement by employing language in
the grievance settlement of a third party that reaffirms the agency's
commitment to provide a harassment free environment and ongoing training,
contains no nexus to the matter that was the subject of the settlement
agreement at issue in the instant appeal. Accordingly, the agency's
final determination is AFFIRMED.<2>
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 (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). 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 8, 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
ASSISTANT1 On 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.
2 In light of our disposition of the instant case, we find it unnecessary
to address the agency's determination that complainant's allegation of
settlement breach was untimely raised.