01991717
01-10-2000
Mark Piacitelli, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Mark Piacitelli, )
Complainant, )
)
v. ) Appeal No. 01991717
) Agency No. 4E-980-0135-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Complainant timely appealed the agency's final 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),
1614.504); EEOC Order No. 960, as amended.
The record indicates that complainant, an EAS-16 Supervisor, Customer
Service, contacted an EEO Counselor on July 7, 1997, when he was
threatened by his coworker and management failed to provide him a
safe work environment. On August 15, 1997, the parties entered into a
settlement agreement, which provided, in pertinent part, that:
Complainant would receive a lateral, non-competitive reassignment as an
EAS-16 Maintenance Supervisor. Complainant would submit his request
in writing to EDDC Manager. It is understood that the position hours
are the same as the complainant's current work schedule. Additionally,
the first week of annual leave used by complainant during his absence
would be converted to sick leave at complainant's request.
On or around September 3, 1998, complainant alleged that the agency
breached the settlement agreement. Specifically, complainant indicated
that although manager promised that the identified coworker would not
be returning to the EDDC facility, that individual has recently been
reinstated to the EDDC facility and would begin a tour that crosses into
his.
The record contains a copy of the notice of final interview wherein
complainant was notified of his option to settle his informal complaint or
file a formal complaint. Therein, complainant's EEO Counselor stated that
management indicated during EEO interview that the identified coworker
was currently on administrative leave and his work status was pending, and
if he were to return to work, he would be returning to another facility,
not the EDDC facility.
In its final decision, the agency stated that the settlement agreement at
issue does not provide for the stipulation that the identified coworker
would not be returning to the EDDC facility. The agency also indicated
that the notice of final interview was not an agreement, rather it was
information gathered during EEO counseling and provided to complainant
by the EEO Counselor. The agency noted that its records reflected that
complainant submitted a request for a noncompetitive reassignment as an
EAS-16, Maintenance Supervisor at the EDDC to the EDDC Manager on August
12, 1997; he was on Annual or Scheduled Sick Leave from April through
September 1997; he was reassigned to the EDDC facility effective November
8, 1997; and a pay adjustment was processed for 40 hours sick leave on
September 20, 1997. Based on the foregoing, the agency determined that
it did not breach the terms of the settlement agreement.
On appeal, complainant contends that he was misled into settling his
complaint by a false assurance in the notice of final interview that
the identified coworker would not be returning to the EDDC facility.
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, we find that the agency did not breach the settlement
agreement at issue. The record reveals that the settlement agreement
does not provide that the identified coworker would not be returning to
the EDDC facility. Complainant contended that he was misled by a notice
of final interview which contained the statements made by management to
his EEO Counselor, i.e., the identified coworker would be returning to
another facility, not the EDDC facility. We find, however, that this
letter clearly indicated that these statements were made during EEO
interview and complainant had the right to file a formal complaint or
resolve the matter by signing an enclosed settlement agreement. It is
noted that if complainant expected not to have the identified coworker
return to the EDDC facility, that stipulation should have been clearly
expressed in the settlement agreement. Accordingly, the agency's decision
finding no breach of the settlement agreement is AFFIRMED.
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:
January 10, 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 Assistant
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.