01a00602
03-03-2000
Thomas D. Williams, )
Complainant, )
)
v. ) Appeal No. 01A00602
) Agency Nos. 1H-381-0005-99
William J. Henderson, ) 1H-381-0006-99
Postmaster General, )
United States Postal Service )
(S.E./S.W. Areas), )
Agency. )
____________________________________)
DECISION
On October 27, 1999, complainant filed a timely appeal with this
Commission from a final decision (FAD) by the agency dated September 28,
1999, finding that it was in compliance with the terms of the January 15,
1999 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); EEOC Order No. 960, as amended.
The settlement agreement provided, in pertinent part, that:
(1) Within 30 days it would be verified as to whether the Letter of
Warning could be taken out of complainant's file.
(2) Upon complainant's completion of an Update Promotion Form 991,
the Manager of Distribution Operations (MDO) would review it and give
complainant constructive feedback as to whether it is done, and offer
suggestions on ways to improve his status in applying for the Associates
Program.
(3) The Manager of Distribution Operations would inquire about the Small
Parcel and Bundle Sorter (SPBS) position and attempt to get the position
posted and/or inform complainant when the job would become available.
(4) A full review/evaluation of complainant's attendance, job performance,
and ability to stand as a 204B and/or apply for the Second Associates
Program class, would be done by March 22, 1999. After that date,
complainant would have seven days to either drop his complaints or
request another mediation.
By letter to the agency dated March 23, 1999, complainant alleged that
the agency was in breach of the aforementioned terms of the settlement
agreement, and requested that the agency continue processing the complaint
from the point at which processing ceased. Specifically, complainant
alleged that the MDO failed to: (1) notify him as to the status of the
Letter of Warning; (2) critique his prior Form 991; (3) inform him as to
the status of the SPBS position; and (4) inform him about the evaluation
of his attendance, job performance and ability to stand as a 204B.
In its September 28, 1999 FAD, the agency found that it had implemented
the settlement agreement. Specifically, the MDO reported that the Letter
of Warning had been removed from complainant's file. Regarding the Form
991, the MDO stated that he requested a From 991 from complainant in
order that he could review it, but complainant refused. Further, the
MDO suggested that complainant attend the Form 991 Preparation class,
but that complainant failed to attend. With respect to complainant's
contention regarding the SPBS position, the MDO stated that he inquired
about the position, but that he has no control of the posting of the
position. Finally, the MDO stated that he did in fact give complainant a
full review of his attendance, job performance and ability to stand for
the 204B, and/or apply for the Second Associates Program. In fact, he
added that complainant has been a 204B everyday for the last two months.
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 agency submitted e-mail correspondence from
the MDO indicating that he has implemented the terms of the settlement
agreement, in the manner referenced in the agency's final decision.
Complainant failed to dispute the agency's position in its final decision
on appeal or provide any documentary evidence indicating that the agency
has not implemented the settlement agreement. In fact, complainant
admits that he failed to provide the MDO with a Form 991 for his review.
We find no other indication in the record that the agency has not
implemented the settlement agreement in the manner represented by the
MDO in his e-mail.
Accordingly, we AFFIRM the agency's final decision.
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 (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:
March 3, 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 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.