Timothy R. Whitworth, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 28, 2000
01994753 (E.E.O.C. Nov. 28, 2000)

01994753

11-28-2000

Timothy R. Whitworth, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Timothy R. Whitworth v. United States Postal Service

01994753

November 28, 2000

.

Timothy R. Whitworth,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01994753

Agency No. 1-H-351-0037-98

DECISION

Complainant filed a timely appeal with this Commission from the agency's

March 4, 1999 final decision, finding no breach of the the July 30, 1998

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) Complainant . . . agree[s] to withdraw and not pursue EEO Complaint

No. 1-H-351-0037-98 in light of the accepted apology received from

[his supervisor].

(2) Complainant also agree[s] to provide adequate up-to-date medical

documentation in order to request light duty restriction[s] and

accommodations, effective immediately.

No reprisal action will be taken against complainant.

In his claim of breach, complainant alleged that his supervisor took

no action on his light-duty requests despite his submission of updated

medical information. He also noted that his supervisor failed to

complete his Office of Workers' Compensation Program (OWCP) form CA-2.

Further, complainant asserted that a second office wrongfully restricted

his light-duty to ninety days. He noted that the agency only allowed

him to work six hours a day, but required him to take two hours of sick

leave for the time he was not allowed to work. Complainant contended

that all of these actions violated the �no reprisal� clause of the

settlement agreement.

In its March 4, 1999 decision, the agency concluded that it complied

with the terms of the settlement agreement. Specifically, it noted that

complainant was never denied an opportunity to submit updated information

for his request for light-duty.

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. 29 C.F.R. � 1614.504(a). A settlement agreement

is a contract between the employee and the agency for which ordinary

rules of contract construction apply. See Herrington v. Department of

Defense, EEOC Request No. 05960032 (December 9, 1996). The parties'

intent as expressed in the contract, not some unexpressed intention,

controls the construction of a contract. Eggleston v. Department

of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990).

When ascertaining the intent of the parties in a settlement agreement,

the Commission generally relies on the plain meaning rule. See Hyon

v. United States Postal Service, EEOC Request No. 05910787 (December 2,

1991). This rule prohibits the use of extrinsic evidence of any nature,

so long as the writing appears to be plain and unambiguous on its face.

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 the agreement only provided

complainant with a right to provide updated medical documentation to

support his request for light-duty. It did not require the agency

to place complainant in light duty, nor to process his request in a

certain manner. To find otherwise would require the Commission to

imply an intention not expressed in the agreement itself. Therefore,

the supervisor's failure to process his request for light duty and the

agency's failure to provide the duty requested does not constitute breach

of the agreement.

Complainant also claims breach because of alleged reprisal taken against

him. The Commission has held that a complaint alleging reprisal or

further discrimination in violation of a settlement agreement's "no

reprisal" clause, must be processed as separate complaints and not

as a breach of settlement. Bindal v. Department of Veterans Affairs,

EEOC Request No. 05900225 (August 9, 1990); 29 C.F.R. � 1614.504(c).

Therefore, the Commission finds that the agency's subsequent acts,

allegedly taken in reprisal against complainant, do not constitute breach

of the settlement agreement.

Complainant is advised that if he wishes to pursue these reprisal claims

as a new complaint, he shall initiate contact with an EEO Counselor within

15 days after he receives this decision. The Commission advises the

agency that if complainant seeks EEO counseling regarding the new claims

within the above 15-day period, the date complainant filed the appeal

statement in which he raised these claims with the agency shall be deemed

to be the date of the initial EEO contact, unless he previously contacted

a counselor regarding these matters, in which case the earlier date would

serve as the EEO Counselor contact date. Cf. Qatsha v. Department of

the Navy, EEOC Request No. 05970201 (January 16, 1998).

CONCLUSION

Accordingly, the agency's finding on no breach is AFFIRMED.

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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 28, 2000

__________________

Date