Roger B. Pfuntner, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W.) ______________________________)

Equal Employment Opportunity CommissionJan 6, 2000
01993356 (E.E.O.C. Jan. 6, 2000)

01993356

01-06-2000

Roger B. Pfuntner, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W.) ______________________________)


Roger B. Pfuntner, )

Complainant, )

)

v. ) Appeal No. 01993356

) Agency No. 4-G-780-0015-98

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(S.E./S.W.) Agency. )

______________________________)

DECISION

On March 12, 1999, Complainant filed a timely appeal with this Commission

from a final decision (FAD) by the agency dated February 18, 1999,

finding that it was in compliance with the terms of the November 5,

1997 settlement agreement into which the parties entered. 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); EEOC Order No. 960, as amended .<1>

The settlement agreement provided, in pertinent part, that:

(1) [Complainant] will be treated with respect and dignity;

(2) [Complainant] will receive equitable opportunity to perform

assignments the same as other employees;

(3) [Complainant] will receive the same opportunity to apply for

promotions as any other employee subject to Postal regulations and

National Agreement;

(4) No form of retaliation will be taken against [complainant] for filing

this complaint; and

(5) The EEO Counselor will discuss and suggest to the Supervisor methods

to improve the working conditions at PEDC.

By letter to the agency dated July 17, 1998, complainant alleged that

the agency was in breach of the settlement agreement. Specifically,

complainant alleged that the agency failed to:

(1) treat him in an equitable manner;

(2) not retaliate against him;

(3) treat him with dignity and respect; and

(4) Ms. Baca, his supervisor, failed to speak with him about his

concerns.

In its February 18, 1999 FAD, the agency concluded that based upon

the plain language of the agreement, there had been no breach of the

settlement agreement.

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, complainant alleges several instances in which the

agency has breached the settlement agreement entered into on November 5,

1997 and that he is being continuously harassed. In essence, complainant

has alleged subsequent acts of discrimination. According to EEOC

Regulation 29 C.F.R. � 1614.504(c) allegations of subsequent acts of

discrimination that

violate a settlement agreement shall be processed as separate complaints.

Therefore, the agency should have referred complainant to an EEO Counselor

on the issues of discrimination. The Commission also finds that the

agency should reopen complainant's complaint that was settled because

the agency did not incur any legal detriment or provide consideration in

reaching the settlement agreement. See Claude G. Morita v. Department

of the Air force, Request No. 05960450 ( December 12, 1997).

Accordingly, the agency's final decision dismissing complainant's

complaint is REVERSED and the complaint is REMANDED for further processing

in accordance with this decision and applicable regulations.

ORDER (E1199)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claims within thirty

(30) calendar days of the date this decision becomes final. The agency

shall issue to complainant a copy of the investigative file and also shall

notify complainant of the appropriate rights within one hundred fifty

(150) calendar days of the date this decision becomes final, unless the

matter is otherwise resolved prior to that time. If the complainant

requests a final decision without a hearing, the agency shall issue

a final decision within sixty (60) days of receipt of complainant's

request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified

and hereinafter referred to as 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 64 Fed. Reg. 37,644,

37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �

1614.409).

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

(R1199)

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:

Jan 6, 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 Assistant1On 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.