01A43391_r
09-21-2004
Russell R. Howell III, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Russell R. Howell III v. United States Postal Service
01A43391
September 21, 2004
.
Russell R. Howell III,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43391
Agency No. 4E-990-0009-02
DECISION
Complainant filed a timely appeal with this Commission from a decision
by the agency dated March 22, 2004, finding that it was in compliance
with the terms of the January 22, 2003 settlement agreement into which
the parties entered.
The settlement agreement provided, in pertinent part, that:
Complainant will be allowed to cover FMLA protected appointments with
either schedule change or leave of choice.
. . . .
(3) Management will supervise workroom floor and ensure that all
employees will be treated with dignity and respect. Management will
monitor windows and floor for compliance.
(4) Management and Russell will not yell at each other.
Complainant contacted the agency's EEO office on December 29, 2003, and
alleged that the agency was in breach of the January 22, 2003 settlement
agreement, and requested that the agency specifically implement its
terms. Specifically, complainant alleged that on September 24, 2003,
management began yelling at him to divulge information about his surgery.
Complainant alleged that on October 13, 2003, and November 10, 2003,
management demanded that complainant change his appointments scheduled
on those days.
In its March 22, 2004 decision, the agency concluded that the January 22,
2003 settlement agreement was not breached. The agency indicates that
it investigated complainant's allegation of settlement breach resulting
from the September 24, 2003 incident. According to the agency, there
was no evidence in the record that shows that the agency violated
provisions (1), (3), or (4) of the settlement agreement. The agency
stated that it interviewed complainant's witnesses and none were able to
corroborate complainant's statement that the Supervisor yelled at him.
Additionally, the agency learned that although the Supervisor requested
that complainant change his scheduled October 13 and November 10, 2003
appointments due to operational needs, complainant refused and opted to
attend his scheduled appointments.
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 (1), the Commission finds that complainant failed
to show that he was not allowed cover FMLA protected appointments with
either a schedule change or the leave of his choice. Regarding provision
(3), the Commission finds that this provision is too vague to enforce.
Regarding provision (4), complainant did not provide persuasive evidence
to show that management yelled at him.
Accordingly, the agency's decision finding no breach of the January 22,
2003 settlement agreement is AFFIRMED.
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 21, 2004
__________________
Date