0120093123
11-20-2009
Vann Jarrett, III, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Vann Jarrett, III,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120093123
Agency No. 1K221000509
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 17, 2009, finding that it was in
compliance with the terms of the February 9, 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) for ninety days counselee will be supervised on a day to day
basis by the building supervisor V.R. The current manager/supervisor
T.K. will still be his contractual supervisor for purposes as defined
in the contract, and
(2) this...will be in effect for 90 days and will be evaluated with
the assistance of Labor Relations....
By one undated statement and another dated May 4, 2009, complainant
alleged that the agency breached the settlement agreement. Specifically,
complainant, a labor/custodian, alleged that on April 23, 2009, supervisor
T.K. told him two men's restroom stall doors were locked, to unlock
them, and to clean the toilets. Complainant also alleged that on April
30, 2009, supervisor T.K. told him he needed to be in his work area.
Complainant wrote that he went to supervisor T.K's office with a shop
steward and tried to inform her of the settlement agreement, and the
supervisor reacted with anger and followed him and shouted at him when
he left her office.
In its June 17, 2009 FAD, the agency concluded that it did not breach the
settlement agreement. According to agency, supervisor T.K. stated that
she did not specifically recall the alleged April 23, 2009, incident,
but since complainant was assigned to the men's restroom that day
the alleged instruction would make sense. According to the agency,
supervisor T.K. stated she reminded complainant that it was past time
for him to be out of the custodial supply closet and in his work area.
The agency found in the FAD that while supervisor T.K. provided directions
to complainant on two occasions during the period she was not serving as
his primary supervisor, this did not violate the settlement agreement.
It found that it was management's responsibility to ensure employees
are using their time in the best interest of the agency, that it is not
unusual for a supervisor other than the primary supervisor to issue
directions to an employee not performing their duties, and under the
settlement supervisor T.K. was still complainant's contractual supervisor.
In finding no breach, the agency reasoned that while supervisor T.K. gave
complainant directions on two isolated occasions, she did not serve as
his primary supervisor during the 90 day time-frame in the settlement
agreement, and hence the agency complied with the settlement agreement.
On appeal, complainant argues that the issue of his supervisor creating
a hostile work environment was not addressed, and she is retaliating
against him for filing prior EEO complaints. He specifically raises
the April 30, 2009, incident of the supervisor allegedly following and
screaming at him, as well as other alleged acts of reprisal.
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 we find, for the same reasons in the FAD, that the
agency did not breach the settlement agreement. However, complainant's
claim of retaliatory hostile work environment should be treated as a
request for counseling on a discrimination claim. On remand, the agency
shall treat the notice of breach, and any related follow up contacts with
the EEO office as a request for EEO counseling, and counsel complainant
and process the matter in accordance with 29 C.F.R. � 1614.105(b)(1)
et seq.
ORDER
The agency shall treat the notice of breach, and any related follow
up contacts with the EEO office, as a request for EEO counseling, and
counsel complainant and process the matter in accordance with 29 C.F.R. �
1614.105(b)(1) et seq. The agency shall acknowledge to the complainant
that it has received his request for counseling 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 (K1208)
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 77960, Washington,
DC 20013. 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) (1994 & Supp. IV 1999).
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 (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
November 20, 2009
__________________
Date
2
0120093123
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120093123