Lorenzo E. Mitchell, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 19, 2000
01983787 (E.E.O.C. Jan. 19, 2000)

01983787

01-19-2000

Lorenzo E. Mitchell, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Lorenzo E. Mitchell v. United States Postal Service

01983787

January 19, 2000

Lorenzo E. Mitchell, )

Complainant, )

)

v. ) Appeal No. 01983787

) Agency No. 4F-907-0066-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

Complainant filed the instant appeal from the agency's March 13, 1998

decision finding that the agency had not breached a settlement agreement

between the parties entered into on March 25, 1997.<1>

The settlement agreement provided:

1. It is mutually agreed that all employees have the rightful expectancy

to treat and be treated with dignity, respect and curtesy [sic] at all

times. This includes verbal or fisical [sic] gestures of demeaning or

offense nature. Management gives full assurance that such acts/actions

will not be tolerated.

It is agreed that a stand-up talk will be given regarding the above

(#1.) expectancy.

Management agrees to investigate any reported incident that relates to

inappropriate behavior, and take appropriate action where called for.

The postmaster will address the issue of "confidentiality" regarding

information exchanged with management with his supervisors.

It is agreed that all similarly situated persons are to be treated with

essential equality.

It is understood that to correct and improve inter-personal relationships,

join effort is called for.

Complainant subsequently alleged that the agency breached the settlement

agreement. Complainant's breach allegations consist of various incidents

wherein complainant alleged that another person treated him in a hostile

manner, other people were aware of complainant submitting medical claims,

complainant was issued discipline, and complainant was not allowed to

use the Windstar van. Complainant alleged that these incidents breached

the agreement because: he was not treated with dignity, courtesy,

and respect; management failed to investigate the reported incidents;

complainant was not treated with essential equality; and management

failed to address the issue of confidentiality. In the decision the

agency found that the agency had not breached the agreement.

The regulation set forth at 64 Fed. Reg 37,644, 37,660 (1999) (to be

codified as and hereinafter cited as 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. If the complainant believes

that the agency has failed to comply with the terms of a settlement

agreement, then the complainant shall notify the EEO Director of the

alleged noncompliance "within 30 days of when the complainant knew or

should have known of the alleged noncompliance." 29 C.F.R. � 1614.504(a).

The complainant may request that the terms of the settlement agreement

be specifically implemented or request that the complaint be reinstated

for further processing from the point processing ceased. Id.

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 Commission finds that complainant has not alleged that the agency

breached provisions 2 and 6 of the settlement agreement. The Commission

finds that provisions 1 and 5 of the settlement agreement are too vague

to enforce. If complainant is claiming that the incidents occurring

subsequent to when the settlement agreement was entered into were

discriminatory, then, if he wishes to pursue a complaint of discrimination

regarding such incidents he should contact an EEO Counselor pursuant to

� 1614.105(a). See 29 C.F.R. � 1614.504(c) ("Allegations that subsequent

acts of discrimination violate a settlement agreement shall be processed

as separate complaints . . .").

Regarding provision 3, the Postmaster stated in a letter dated February

23, 1998 that he investigated the incidents raised by complainant in the

breach allegations. The portion of provision 3 requiring "appropriate

action" is too vague to enforce. Therefore, we find that complainant

has failed to show that the agency breached provision 3 of the agreement.

Regarding provision 4, the Commission finds that the agency failed

to specifically address whether it has complied with this provision

in the agreement. The agency has not provided any evidence showing

that the Postmaster addressed the issue of confidentiality regarding

information exchanged with management with his supervisors. Therefore,

we shall remand the matter so that the agency can supplement the record

with evidence showing whether it has complied with provision 4 of the

agreement.

The agency's decision finding that it did not breach provisions 1, 3, and

5 of the settlement agreement is AFFIRMED. The agency's decision finding

that provision 4 of the settlement agreement has not been breached is

VACATED and we REMAND provision 4 of the settlement agreement to the

agency for further processing in accordance with this decision and

applicable regulations.

ORDER

The agency shall supplement the record with evidence showing whether the

agency complied with provision 4 of the settlement agreement. Within 30

days of the date this decision becomes final the agency shall issue a

new decision determining whether the agency breached provision 4 of the

settlement agreement. A copy of the agency's new decision must be sent

to the Compliance Officer referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. �1614.503(a). The complainant also has

the right to file a civil action to enforce compliance with the

Commission's order prior to or following an administrative petition

for enforcement. See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be

codified and hereinafter referred to as 29 C.F.R. ��1614.407, 1614.408),

and 29 C.F.R. �1614.503(g). Alternatively, the complainant has the

right to file a civil action on the underlying complaint in accordance

with the paragraph below entitled "Right to File A Civil Action."

29 C.F.R. ��1614.407 and 1614.408. A civil action for enforcement or

a civil action on the underlying complaint is subject to the deadline

stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the complainant

files a civil action, the administrative processing of the complaint,

including any petition for enforcement, will be terminated. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.409).

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 (T1199)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action AFTER

ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your

complaint with the agency, or your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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:

January 19, 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

1 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.