Mwansa Chipepo, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 5, 2000
01a03174 (E.E.O.C. Jul. 5, 2000)

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.