01A31412_r
03-24-2004
Richard P. Clarke, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Richard P. Clarke v. United States Postal Service
01A31412
3/24/04
.
Richard P. Clarke,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31412
Agency No. 1A-111-0085-01
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated November 21, 2002, finding that
it was in compliance with the terms of an October 17, 2001 settlement
agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29
C.F.R. � 1614.405.
The October 17, 2001 settlement agreement provided, in pertinent part,
that:
(1) [Complainant] will receive an overtime makeup opportunity within 90
days; not generally available as long as [a] grievance was not filed for
this particular instance. This makeup opportunity is granted because
[a named agency employee] worked overtime on [July 29, 2001] in her
non-bid area.
(2) ENN [Employee Network News] will be given a bulletin board to
display notices of functions, newsletters, and general information with
[a] glass cover, in the main cafeteria, on other side of candy machines
is specifically requested. This will be given, if required criteria
are satisfied.<1>
Within [a] sixty-day time limit, MDO [named agency manager] will
investigate what is appropriate criteria for an officially recognized
postal organization, and what is procedure for said organization to
apply for a bulletin board on said premises.
[Complainant] request[s] that management state posters, notices, general
information be posted in officially designated areas only.
[Named agency manager], MDO will respond in writing to [complainant],
within sixty days, with requested information.
By letter to the agency dated September 26, 2002, complainant alleged
that the agency breached the settlement agreement, and requested that the
agency reinstate his complaint from the point processing ceased. In his
letter claiming breach, complainant does not specify what provisions the
agency breached; however, complainant stated that the agency failed to
supply information from either an Employee and Labor Relations Specialist
or from the agency's Legal Department. Complainant further states �I
fit the criteria for a bulletin board and am denied [the] same which
I claim is discriminatory. Management has nothing to show me [and]
just delays the process.�
In its November 21, 2002 FAD, the agency concluded that it was not in
breach of the agreement. The agency asserts that the MDO conducted an
inquiry which revealed that the agency can not provide a bulletin board
to a self appointed organization. The agency further states that ENN
�is [complainant's] own self appointed voice, and does not represent
employees.� In addition, the agency states that ENN's inflammatory
remarks about management could result in ENN being characterized as an
employee representative group which could create conflict between the
agency's recognized union and management. Moreover, the agency states
that while certain groups are given their own bulletin boards, such as
the Asian Employees Group and Hispanic Society, this is done �to provide
information on social activities, diversity issues, etc. which is not
the purpose of [complainant's] group.�
In regard to provision (5), the agency stated that the MDO discussed the
matter regarding a bulletin board with complainant shortly after signing
the settlement agreement. The agency indicated that the � MDO assumed
that his explanation had been accepted by [complainant] and therefore,
he did not write a response to [complainant]. MDO...apologized for his
oversight and stated he would respond to [complainant] in writing as
soon as possible.�
On appeal, complainant states that ENN should be treated as any other
organization. Complainant also asserts that ENN does host social
activities. Moreover, complainant states �[w]e are the same as [other]
organizations and we are also entitled to have a bulletin board to show
our upcoming charitable events as well as our various social events.�
In response, the agency requests that the Commission affirm its final
decision. In addition, the agency asserts that the MDO spoke to the
facility head and that the facility head provides bulletin boards for
local unions, veteran, and diversity groups.
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).
Regarding provision (2), the record contains insufficient information
in order to determine whether the agency is in breach of this provision.
The agency asserts in its final decision and on appeal, that an inquiry
found that ENN did not meet the criteria to have a bulletin board;
however, the agency's final decision and brief on appeal do not clearly
specify what are the �required criteria� as that term is used in this
provision. Moreover, the record does not contain any documentation
setting forth the agency's �required criteria� for organizations to be
recognized by the agency and provided with bulletin boards.
The Commission is unable to determine whether the agency is in breach of
provision (3) of the settlement agreement. Provision (3) provides that
the MDO will investigate the appropriate criteria for an organization to
be recognized by the agency. While the agency in its final decision and
a letter from the MDO state that there was an inquiry conducted regarding
the criteria for bulletin boards, with the exception of the agency's
assertion in its brief asserting that the MDO spoke to the facility head,
the record does not contain any documentation regarding the inquiry such
as what specific information or documents were supplied to the MDO.
Accordingly, the Commission VACATES the agency's decision and remands
this matter to the agency in accordance with the ORDER below.
ORDER
The agency is Ordered to take the following action:
Supplement the record with documentation to determine whether the agency
is in breach of the October 17, 2001 settlement agreement. The agency
shall provide affidavit and/or other documentary evidence that the MDO
conducted an inquiry regarding the � required criteria� for organizations
to be recognized by the agency and provided with bulletin boards.
The supplemental investigation shall including obtaining information
regarding with whom the MDO spoke in his inquiry and the specific criteria
that were provided to the MDO from said individual(s).
The agency shall then issue a new final decision addressing the issue of
settlement breach and provide complainant with a statement of his right
to appeal to this Commission, within thirty days of the date that this
decision becomes final.
The agency shall provide a copy of the new final decision to the
Compliance Officer referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
3/24/04
Date
1The record reflects that �Employee Network
News� is an organization with which complainant is affiliated.