0120100880
06-10-2010
Sterling D. Brandenburg, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Sterling D. Brandenburg,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120100880
Agency No. 4J530007009
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated December 8, 2009, finding that it was
in compliance with the terms of the May 22, 2009 settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(1) Management agrees to meet with [complainant] and [named
individual] as soon as possible but no later than June 15, 2009.
The purpose of this meeting is to discuss inappropriate comments and
workplace behavior;
(2) After the [complainant], [named individual] and [named individual]
meeting, meetings will be held with clerks to reinforce current policies,
inappropriate comments and work behavior no later than June 30, 2009; and
(3) Management will address any late opening of the window.
In two informal complaints filed with the agency dated September 25, 2009,
and October 24, 2009 and a letter dated October 22, 2009, complainant
alleged that the agency was in breach of the settlement agreement
and requested that the agency reinstate his complaint. Specifically,
complainant alleges that since he filed the complaint settled by the
May 22, 2009 agreement, "things at the King Station have not improved."
Complainant further alleges that agency officials continue "to allow
[inappropriate behavior of] certain clerks..." Complainant alleges that
in violation of the settlement agreement, the agency has allowed the
inappropriate behavior to continue.
In its December 8, 2009 FAD, the agency concluded that it had not
breached the May 22, 2009 settlement agreement between the parties.
Specifically, the agency stated that complainant's correspondence
to the agency regarding the agreement is merely a continuation of
complainant's allegations in the previously settled EEO complaint.
The agency determined in its final decision that complainant had not
raised a new complaint of employment discrimination, rather, he was
simply restating claims previously raised in his prior EEO complaint
which was purportedly settled by the May 22, 2009 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 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 instant case, the Commission finds that complainant has
not established that the agency breached any specific provision
of the agreement. The settlement obligated the agency to schedule
a meeting regarding workplace behavior between complainant and his
co-worker in order to address inappropriate behavior and requires the
agency to reinforce agency policy regarding inappropriate behavior.
In his correspondence to the agency complainant does not indicate that
agency conduct has violated any specific provision of the May 22, 2009
settlement agreement. In applying the plain meaning rule stated above,
the Commission finds that complainant has failed to establish that
the agency violated the plain language or any particular provision of
the agreement. In that regard, the Commission finds that the agency's
determination that it complied with the settlement agreement was proper.
Accordingly, the agency's 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
June 10, 2010
__________________
Date
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0120100880
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100880