0120083467
01-27-2009
William R. Mack, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
William R. Mack,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083467
Agency No. 1H-366-0014-08
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated July 16, 2008, finding that the agency was in compliance
with the terms of the January 8, 2008 settlement agreement into which
the parties entered. See 29 C.F.R. �� 1614.402; .405; and .504(b).
The settlement agreement provided, in pertinent part, that:
(1) The parties shall meet once a week to discuss workplace issues
in a private place.
(2) [], [a] work culture analyst, shall work with the parties to
this action in maintenance at the Land DC.
(3) The parties shall treat each other professionally.
By correspondence to the agency dated January 9, 2008, complainant
alleged that the agency was in breach of the settlement agreement, and
requested that the agency specifically implement its terms. Specifically,
complainant alleged that a supervisor (S1) failed to intervene when a
coworker (C1) verbally assaulted him and threw the blower portion of a
vacuum at him. Complainant stated that C1 used obscenities toward him
in the presence of S1 and that S1 accused complainant, rather than C1,
of "improper conduct."
In its July 16, 2008 final decision, the agency concluded that it
was in compliance with the January 8 settlement agreement. The agency
stated that S1 meets with complainant when both parties are available to
inquire about the work environment and any issues. Further, the agency
stated that S1 conducted investigative interviews regarding the incident
outlined in complainant's January 9 letter. Also, the agency stated
that, on January 24, 2008, the Workplace Environment Analyst conducted
a climate assessment survey at the involved facility and reported her
results to management on February 19, 2008.
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 that complainant failed to meet his burden of
proving breach. See Vega v. U.S. Postal Service, EEOC Appeal No. 01986613
(June 30, 2000). Based on evidence in the record, the Commission is not
persuaded that the agency breached the settlement agreement as complainant
alleged here. Instead, it appears that the subsequent incidents are
allegations of harassment that may be better addressed as a separate
complaint, rather than as a breach allegation. See Bindal v. Dep't of
the Air Force, EEOC Request No. 05900225 (August 9, 1990). Therefore,
complainant may raise his claim of further discrimination as a new,
separate EEO claim with an EEO Counselor, if he has not already done so.
We AFFIRM the final agency decision.
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
January 27, 2009
__________________
Date
2
0120083467
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120083467