01963176
10-21-1998
Kevin Rowe, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kevin Rowe, )
Appellant, )
)
v. ) Appeal No. 01963176
) Agency No. 2G-1577-2
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On March 9, 1996, appellant filed a timely appeal with this Commission
from a February 1, 1996 final agency decision, received by him on
February 16, 1996. In its final decision, the agency determined that
it did not breach the settlement agreement. See 29 C.F.R. ��1614.504,
.402(a); EEOC Order No. 960, as amended.
The settlement agreement (SA-1), which was fully executed on August 7,
1992, provides as follows: in the future, management will consider all
of complainant's requests for revised schedules, provided that the "time
limit for annual leave is not off for the date in question." In exchange
for the agreement, appellant withdrew his request for EEO counseling.
The record reveals that on October 27, 1995, appellant informed the
EEO office that SA-1 was breached on October 6, 1995, when his request
for a revised schedule was not considered. In deciding that there was
no breach, the agency stated in its final decision that appellant's
supervisor denied receiving a Request for Temporary Schedule Change
for Personal Convenience (PS Form 3189) and that although appellant was
requested by the agency to provide a copy of Form 3189, he failed to
do so. The agency stated further that appellant submitted a Request for
Notification of Absence (PS Form 3971) to his supervisor on October 6,
1995, that appellant's request was made in accordance with the Family
Medical Leave Act (FMLA), and that the leave was approved by appellant's
supervisor.
On appeal, appellant contends that the reason there is no record of
a Form 3189 was that it was neither approved nor disapproved because
the Manager of Distribution Operations refused to accept the Form 3189.
Appellant also contends on appeal that the agency never interviewed him
regarding the alleged breach and instead only sent a list of questions to
him for his responses regarding the breach allegation. Appellant also
contends that had the investigation of the alleged breach been properly
conducted, the agency would have learned that appellant had a witness
who could attest to his request for a revised schedule.
EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties shall
be binding on both parties. That section further provides that if the
complainant believes that the agency failed to comply with the terms of a
settlement agreement, the complainant shall notify the Director of Equal
Employment Opportunity of the alleged noncompliance with the settlement
agreement. 29 C.F.R. �1614.504(a). The complainant may request that the
terms of the settlement agreement be specifically implemented or request
that the complaint be reinstated for further processing from the point
processing ceased.
EEOC Regulation 29 C.F.R. �1614.504(b) provides that the agency shall
resolve the matter and respond to the complainant, in writing. If the
agency has not responded to the complainant, in writing, or if the
complainant is not satisfied with the agency's attempt to resolve the
matter, the complainant may appeal to the Commission for a determination
as to whether the agency has complied with the terms of the settlement
agreement or final decision. The complainant may file such an appeal
35 days after he or she has served the agency with the allegations of
noncompliance, but must file an appeal within 30 days of receipt of an
agency's determination.
EEOC Regulation 29 C.F.R. �1614.504(c) provides that allegations that
subsequent acts of discrimination violate a settlement agreement shall
be processed as separate complaints, rather than as allegations of breach
of settlement.
Settlement agreements are contracts between the complainant and the agency
and it is the intent of the parties as expressed in the contract, and not
some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990); In re Chicago & E.I. Railway Co., 94 F.2d 296 (7th
Cir. 1938). In reviewing settlement agreements to determine if there is
a breach, the Commission is often required to ascertain the intent of the
parties and will generally rely on the plain meaning rule. Wong v. U.S.
Postal Service, EEOC Request No. 05931097 (April 29, 1994) (citing Hyon
v. U.S. 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, then its meaning must be determined from the four corners
of the instrument without resort to extrinsic evidence of any nature.
Id. (citing Montgomery Elevator v. Building Engineering Service, 730
F.2d 377 (5th Cir. 1984)).
Appellant alleges that SA-1 was breached when his request for a revised
schedule was denied. We note, however, that there is no evidence of
record to support appellant's allegation. While appellant claims to have
submitted a Form 3189 for a revised schedule, neither he nor the agency
provided a copy of that form in the record. Appellant's supervisor stated
that appellant did not submit a Form 3189 nor did she deny any request
for a revised schedule on October 6, 1995. The supervisor stated that
appellant did submit a Form 3971 on October 6, 1995. The supervisor also
stated that appellant was familiar with the procedure for requesting
a revised schedule and had submitted such requests to her previously.
The record also contains a response from the Manager of Distribution
Operations who stated that he also did not deny a request from appellant
for a revised schedule on October 6, 1995, nor did he have any discussion
with appellant regarding a request for a revised schedule. The Manager
stated also that the procedure for requesting a revised schedule was
for the employee to submit a Form 3189 to the supervisor. The record
contains a copy of an October 6, 1995 Form 3971, which was signed by
appellant and approved by his supervisor. The record also contains a
statement in support of the Form 3971 leave request, which discloses
that appellant was requesting leave for October 8, and October 9, 1995
because of his son's surgery. The record also contains a Health Care
Provider Certification of Employee's Family Member Illness FMLA for
surgery of appellant's son on October 9, 1995. Accordingly, we find
that appellant did not request a revised schedule on October 6, 1995,
but rather, made a request for leave, which appears to have been granted.
Furthermore, the Commission notes that in appellant's response to the
agency's questions regarding the breach and in his appeal, appellant
indicated that in addition to SA-1, settlement agreements in Agency
No. 2G-1416-2 (SA-2) and Agency No. 2G-1578-2 (SA-3) were breached.
The agency did not address the alleged breach of SA-3 in its final
decision and stated that it had no record of Agency No. 2G-1416-2.
The record contains SA-2 and SA-3.<1> SA-2, which was entered into
on May 27, 1992, provides as follows: (1) both the complainant and the
supervisor will treat each other with respect and deal with each other
in a professional manner; and (2) any discussion about the complainant's
work habits will be discussed in private when they apply to him as an
individual. SA-3, which was entered into on August 7, 1992, provides that
[the Manager of Distribution Operations] and complainant would treat each
other with dignity and respect according to the regulations in the ELM,
specifically 666.2 concerning standards of conduct. In exchange for
SA-2 and SA-3, appellant withdrew his requests for EEO counseling.
The agency failed to address appellant's allegations of breach of SA-2
and SA-3 despite being given notice of an alleged breach. Nonetheless,
we find sufficient evidence of record to address the breach allegations.
Both settlement agreements contain similar provisions, namely, that
appellant will be treated in a professional manner with dignity and
respect. We find that similar to no reprisal clauses, provisions that an
individual will be treated in a professional manner, do not provide the
individual with anything that they were not already entitled to receive,
i.e., these provisions do not provide any consideration in exchange for
the withdraw of EEO matters. Consequently, like no reprisal clauses,
we find that any allegation of breach of such provisions must be raised
as new allegations. See Bruns v. U.S. Postal Service, EEOC Appeal
No. 01965395 (June 24, 1997) (provision in settlement agreement that
appellant was to be treated fairly and with dignity and respect was too
vague to allow a determination of whether the agency had complied with
the provision); Dove v. U.S. Postal Service, EEOC Appeal No. 01963814
(January 3, 1997)(provision in settlement agreement requiring management
to act professionally toward appellant was too vague to be enforceable);
Lesnick v. U.S. Postal Service, EEOC Appeal No. 01951082 (February
23, 1996) (provision in settlement agreement that complainant was to
be treated with same respect as that accorded any human too vague to
determine compliance). Consequently, appellant may, if he so wishes,
contact an EEO Counselor pursuant to 29 C.F.R. �1614.105 to pursue such
allegations as separate non-breach allegations of discrimination. See
29 C.F.R. �1614.504(c); Whitfield v. U.S. Postal Service, EEOC Appeal
No. 01956037 (October 23, 1996).
Consistent with our discussion herein, the agency's decision finding no
breach of SA-1 is AFFIRMED. We also conclude that there was no breach
of SA-2 or SA-3.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Oct. 21, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations1Appellant submitted a copy of SA-2 with
his appeal.