Douglas McGhee, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 7, 2000
01a02086 (E.E.O.C. Jun. 7, 2000)

01a02086

06-07-2000

Douglas McGhee, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Douglas McGhee, )

Complainant, )

)

v. ) Appeal No. 01A02086

) Agency No. 1F901012499

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On January 3, 2000, complainant filed a timely appeal with this Commission

from an agency decision dated December 21, 1999.<1> In the decision,

the agency found that it was in compliance with the terms of the May 17,

1999 settlement agreement into which the parties entered.

The settlement agreement provided, in pertinent part, that:

(1) Management will continue to investigate the idea proposal submitted

by the complainant regarding mule/forklift brake drums. Management will

bring closure to this matter by either denying or adopting the proposal

once the investigation is completed. If the proposal is not adopted an

explanation will be given. Closure to the complainant's proposal will

occur by June 11, 1999; and

(2) Management will continue to review and consider all individuals for

the award program. The complainant will be treated equally as other

prospective award recipients which include job performance, safety,

and attendance;

By letter to the agency dated July 2, 1999, complainant alleged that

the agency was in breach of the settlement agreement, and he requested

that the agency specifically implement the terms of the agreement.

Specifically, complainant alleged that the agency failed to deny or adopt

his proposal by June 11, 1999, and failed to properly process the award

recommendation.

In its December 21, 1999 FAD, the agency concluded that the agency

conducted an investigation concerning complainant's idea proposal

and made a decision pursuant to the settlement agreement. The agency

acknowledged that the assigned supervisor did not render a decision

about the proposal on June 11, 1999, because he was on jury duty until

June 17, 1999. Also, the agency found that the agency considered all

individuals for the awards program.

Volume 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).

According to the Commission's case precedent, when an agency has

committed, in good faith, a technical breach of a provision of the

agreement which did not undermine its purpose or effect, the agency has

substantially complied with the settlement agreement. See e.g., Baron

v. Dept. of the Treasury, EEOC Request No. 05930277 (September 30, 1993)

(Two-week delay in transfer of official and letter of regret rather

than letter of apology found to be substantial compliance); Ramirez

v. U.S. Postal Service, EEOC [PAGE 5] Request No. 05930283 (August 12,

1993) (Substantial compliance found notwithstanding dispute over manner

in which overtime opportunities required under agreement were granted).

In the instant case, the Commission finds that the agency has

substantially complied with the terms of the agreement. Although the

record reflects that the agency did not comply with the deadline in

the agreement (when the assigned supervisor did not deny or accept

complainant's proposal by June 11, 1999), the record also reflects

that the assigned supervisor was on jury duty at that time. Once the

supervisor returned to the agency, he ruled on the proposal within six

days of the deadline. Thus, the agency has since complied with the

terms of the agreement. The complainant has not shown that the agency

undermined the purpose or effect of the agreement. The Commission

finds that it would serve no useful purpose to remand this case for

reinstatement of the underlying complaint.

In addition, the Commission finds that complainant has not shown that the

agency did not review and consider all individuals for the award program.

The assigned supervisor investigated and ruled on complainant's proposal.

While the supervisor did not recommend complainant for an award, the

agency did review and consider complainant for the award program.

Accordingly, the agency's decision is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

June 7, 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.