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.