01a03174
07-05-2000
Mwansa Chipepo, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Mwansa Chipepo v. United States Postal Service
01A03174
July 5, 2000
Mwansa Chipepo, )
Complainant, )
)
v. ) Appeal No. 01A03174
) Agency No. 4A-088-0043-00
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated March 1, 2000, finding that it
was in compliance with the terms of the January 21, 2000 settlement
agreement into which the parties entered.<1> See 64 Fed. Reg. 37,644,
37,659, 37,660 (1999)(to be codified and hereinafter referred to as
EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b); and 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
The settlement agreement provided, in pertinent part, that: (1) the
Postmaster agreed to release complainant if he was able to secure
a transfer to another post office; and (2) the Postmaster agreed to
advise complainant when his official personnel file was requested by
another office.
By letter to the agency dated February 15, 2000, complainant alleged
that the agency was in breach of the settlement agreement, and requested
that the agency specifically implement the its terms. Specifically,
complainant alleged that the agency violated the agreement when he was
denied a transfer two days after the agency's personnel office sent a
copy of his personnel file to the agency's Newark, New Jersey, facility.
Complainant received a written rejection from the Newark facility citing
poor work performance. He alleges that the Postmaster verbally agreed
before everyone present at the settlement mediation that he would
remove a Letter of Warning (LOW) from his personnel file. However,
what he received was a separate letter from the Postmaster and the Union
Representative stating that the LOW would be removed from his file on
May 10, 2000, only if no further disciplinary action was taken against
complainant. Complainant also argues that he witnessed the mailing of
his personnel file to the Newark facility, but he did not witness the
mailing of his work evaluations, which had been requested twice by the
same facility. It was complainant's understanding that his evaluations
were a part of an employee's personnel file.
In its March 1, 2000 FAD, the agency concluded that the agreement in
question had not been breached. With regard to stipulation (1), the
agency asserted that because complainant was unsuccessful in securing
a transfer, he could not be released from their facility. With regard
to stipulation (2), both the Postmaster and the Supervisor of Customer
Services (Supervisor) stated that at the complainant's request, the
complainant witnessed his personnel file being mailed to the Newark
facility. The Postmaster and the Supervisor also stated that complainant
took part in the mailing of his personnel file and that before it was
mailed the complainant witnessed that the LOW was not in his personnel
file when it was mailed.
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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 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 instant case, the record shows that complainant failed to
secure a transfer; therefore, the agency was under no obligation to
release complainant from the facility in accordance with agreement.
With regard to stipulation (2), the agreement stated that complainant
was to be advised when his official personnel file was �requested� by
another office. Here, the record shows that complainant witnessed the
mailing of his personnel file to the Newark facility. The settlement
agreement is devoid of any language with regard to advising the
complainant with regard to the request of written work evaluations and
the LOW. Therefore, because the Agreement did not explicitly express
this intent, we find that complainant failed to show how the Agreement
was breached. Accordingly, we affirm the agency final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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
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:
July 5, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Equal Employment Assistant Date
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.