Ricky A. Muzny, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 17, 2000
01a02488 (E.E.O.C. Nov. 17, 2000)

01a02488

11-17-2000

Ricky A. Muzny, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Ricky A. Muzny v. United States Postal Service

01A02488

11-17-00

.

Ricky A. Muzny,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A02488

Agency No. 4G-730-0114-99

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated January 10, 2000, finding that it was

in compliance with the terms of the May 20, 1999 settlement agreement

into which the parties entered.<1> See EEOC Regulation 29 C.F.R. �

1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.

The settlement agreement (SA) provided, in pertinent part, that

complainant �will not be questioned on his 3996 [a form for a letter

carrier to request auxiliary help/overtime] when he puts down that he

is ill except when medical conditions may impair work safety.�

Complainant filed an informal request for counseling on November 28,

1999, in which he alleged (along with another allegation) that the agency

was in breach of the SA. In the course of EEO counseling, he requested

that the agency amend the terms of the SA in some unspecified manner.

Complainant alleged that on November 6, 1999, the carrier supervisor

(MO-1) violated the SA when he returned complainant's 3996 to him

with complainant's request denied and the reason for needing overtime

(�fatigue�) circled, accompanied by the notation �? letter carrier.�

In its January 10, 2000 FAD, the agency concluded that it had not breached

the SA because MO-1, complainant's immediate supervisor, was �unaware of

the SA at the time of his denial for auxiliary assistance on November 6,

1999.� It stated that MO-1 was now aware of the SA and would abide by

that SA. It also suggested that complainant, in the future, word future

requests for assistance with the phrase �ill,� rather than �fatigued.�

The agency denied complainant's request to amend his SA.

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.

That section further provides that if the complainant believes that the

agency has failed to comply with the terms of a settlement agreement,

the complainant shall notify the Director of Equal Employment Opportunity

of the alleged noncompliance with the settlement agreement 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.

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 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. U.S. Postal Service, EEOC Request No. 05931097 (April 29, 1994)

(citing Hyon O v. U.S. 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, 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)).

In the instant case, we find that the agency had violated

complainant's SA when MO-1 clearly questioned the complainant's need

for assistance/overtime. The SA had been signed by complainant and

the facility station manager in May 1999. The agency was responsible

for implementing the SA, which would, it seems, include notifying

complainant's supervisors of the provisions of that SA, since those

supervisors would be the management officials most likely to be handling

complainant's requests for assistance/overtime. We find that the agency

breached the term of the SA and that the terms should be specifically

implemented.

We also find that complainant is claiming that the breach of his

SA is one incident in a pattern of incidents that are evidence of a

hostile work environment based on his physical disability and reprisal.

Those other incidents are also the subject of appeals to this Commission

in EEOC Appeal Nos. 01A02904, 01A04172, and 01A04173. We conclude that

the Commission's finding of breach should be investigated as background

evidence to those other incidents, as part of the pattern of a hostile

work environment.

CONCLUSION

Accordingly, the decision of the agency is REVERSED and the agency is

ordered to comply with the order below.

ORDER

The agency is ORDERED to specifically implement the terms of the SA

signed on May 20, 1999, and is also ordered to use the finding of breach

as background evidence in the consolidated investigation of EEOC Appeal

Nos. 01A02904, 01A04172, and 01A04173.

The agency shall acknowledge to the complainant that it has received

the finding of breach, and shall also acknowledge that it will use the

finding as background evidence in the investigation of the consolidated

EEOC Appeal Nos. 01A02904, 01A04172, and 01A04173, within thirty (30)

calendar days of the date this decision becomes final.

A copy of the agency's letter of acknowledgment to complainant must be

sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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 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 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 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 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

(R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. 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 filed your appeal with the

Commission. 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. 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

__11-17-00________________

Date

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:

__________________

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.