0120072734
09-16-2009
Millard P. Burruss,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072734
Agency No. 4H-370-0161-05
DECISION
Complainant filed an appeal with this Commission from a final decision
by the agency dated April 30, 2007, finding that it was in compliance
with the terms of the October 28, 2005 settlement agreement into which
the parties entered.
The settlement agreement provided, in pertinent part, that:
(1) The three statements handwritten by unknown party on evaluation
faxed 9-11-05 will be removed. [Complainant's Supervisor] states this
was not part of the original evaluation.
(2) An effort will be made to find out who wrote these additional
statements on this form.
(3) Regarding the next career opportunity that becomes available
for [complainant], it is stated by [two named agency officials] that
[complainant] will have a fair and equitable opportunity to fill this
opening.
By letter to the agency dated February 2, 2006, complainant alleged
that the agency breached provision (2) of the agreement. Specifically,
complainant alleged that anonymous comments remained in his performance
file. Complainant stated that during the last week of November and
the first week of December 2005, he asked his former supervisor about
the status of the investigation concerning the anonymous statements in
his performance file because he felt that the supervisor intentionally
placed derogatory information in the file.
In its May 23, 2006 final decision, the agency found no breach of
provision (2). The agency determined that the Manager, Distribution
Operations (Manager) stated that the settlement agreement was honored.
The agency further determined that the Manager conducted an investigation
and found no derogatory comments exist in complainant's file. The agency
determined the Manager stated that the three anonymous statements were
not written by complainant's former Supervisor because he had a "very
distinctive" handwriting.1
Complainant filed an appeal from the agency's final decision finding no
breach. In EEOC Appeal No. 0120063933 (December 5, 2006), the Commission
found there was insufficient evidence to determine whether a breach of
provision (2) occurred. The matter was remanded for the agency to conduct
a supplemental investigation to determine whether it was in compliance
with provision (2). The Commission noted that on appeal complainant
claimed that the agency failed to provide him an opportunity for the
next open career opportunity in management in accordance with provision
(3). It was noted that there was no indication complainant had raised
the new claim of breach with the agency prior to filing an appeal with
the Commission. Complainant was advised that if he wished to pursue
further a claim that the agency breached provision (3), he should first
raise the new breach claim with the agency pursuant to EEOC Regulation 29
C.F.R. � 1614.504. Provision (3) is not at issue in the instant appeal.
Following a supplemental investigation on provision (2), the agency issued
a new final decision on April 30, 2007, finding that it was in compliance
with the October 2005 settlement agreement. The agency noted that the
Manager conducted an investigation of the matter stating that the comments
not written by complainant's former Supervisor who had a very distinctive
handwriting. The agency noted that the Manager also stated there are
no transfer or performance files to review and no comments to remove.
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). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon O v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the 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 Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
In the present case, we find complainant has failed to show that
the agency breached provision (2) of the October 28, 2005 agreement.
Provision (2) provides that the agency will make an effort to find out
who wrote the additional statements at issue. The record contains a
December 22, 2006 affidavit from complainant's former Supervisor who
stated that he did not write the comments at issue. Complainant's former
Supervisor stated that the day following the settlement agreement, he
inquired to local managers and Person A of the Human Resources Office
to see if they knew who wrote the comments; however, they did not know
who wrote the comments. Complainant's former Supervisor stated that
complainant was informed of the results of this investigation about a
week after the meeting.
The record also contains an electronic mail message from the Manager
dated May 12, 2006, stating that the notes at issue were not written by
complainant's former Supervisor, which complainant is aware of because the
former Supervisor has a very distinctive handwriting. The Manager stated
that there was no file to review since complainant's former Supervisor
did not keep a transfer file. The Manager also provided an affidavit
dated April 27, 2007, stating that she conducted an investigation
concerning the matter. The Manager reiterated that the note was not
written by complainant's former Supervisor and stated there was no
transfer or performance file to review and thus, no comments to remove.
Upon review, we find the agency has substantially complied with provision
(2). Although the agency was unable to determine the identity of the
person who wrote the comments, the record shows that it did make an
effort to investigate the matter in accordance with the terms of the
settlement agreement.
Accordingly, the agency's final decision is AFFIRMED.
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
September 16, 2009
__________________
Date
1 During the relevant time, complainant's former Supervisor retired from
the agency.
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0120072734
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120072734