01A32341_r
07-14-2004
Alvin C. Hicks, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Alvin C. Hicks v. United States Postal Service
01A32341
July 14, 2004
.
Alvin C. Hicks,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A32341
Agency Nos. 4K-220-0096-99, 4K-220-0003-99, 4K-220-0021-99,
4K-220-0032-99, 4K-220-0075-99, and 4D-220-1066-95
DECISION
Complainant filed an appeal with this Commission regarding the agency's
compliance with the terms of a settlement agreement dated October 25,
2000, and a second settlement agreement dated February 14, 1996, into
which the parties entered.
The settlement agreement of February 14, 1996, provided in pertinent
part, that:
[a] [Complainant] will continue on a permanent basis, [his] current
mailhandler position at the Arlington Annex 22206. If the duties and
responsibilities that [he is] currently performing are eliminated,
[he] will be reassigned consistent with the terms of the collective
bargaining agreement.
[b] It is further agreed that [complainant] will be treated with dignity
and respect, and that no reprisal action will be taken against [him]
as a result of this settlement.
The settlement agreement of October 25, 2000 provided, in pertinent
part, that:
(3) An overtime desired list shall be posted for mailhandlers in
accordance with the mailhandler contract. When overtime is needed for
duties that [complainant] is normally assigned to in accordance with his
job offer, provided he has signed the overtime desired list, he shall be
granted overtime opportunities in rotation with clerks who have signed
the overtime desired list.
. . . .
(6) [Complainant] will be treated with dignity and respect. Management
will avoid jumping to conclusions and will communicate with [complainant]
regarding his performance and duties.
By letter to the agency dated February 19, 2003<1>, complainant alleged
that the agency was in breach of the settlement agreements. Specifically,
complainant alleged that his supervisor refused to provide complainant
with the proper forms for filing an injury report for a traumatic
illness that he experienced at work, that resulted from harassment.
Complainant states that he was forced to use annual leave in lieu of
sick leave after management threatened his job. Further, complainant
states that his supervisor harassed him regarding errors in his clock
rings and accused him of trashing the clerk craft office, which further
exacerbated his medical conditions.
Complainant further alleges that provision (6) of the October 25,
2000 settlement agreement is repeatedly violated when agency management
requires him to supply his supervisor with documentation concerning his
medical diagnosis and medication prescription every 90 days. Complainant
alleged that he has had to endure name-calling (�maggot� and �boy�) to
the point where complainant becomes ill and requires medical attention.
Complainant adds that his supervisor further harassed him by issuing
two letters of warning to him, threatening complainant's job.
On appeal, complainant submits copies of the two settlement agreements
and has annotated a copy of the October 25, 2000 agreement with circles
to indicate he believes provisions (3) and (6) of that agreement have
been breached.
The Commission notes that by letter dated February 25, 2003, the agency
acknowledged receipt of complainant's breach claim letters and directed
complainant to file an appeal with the Commission, if he believed that
the settlement agreements had been breached. This letter references six
agency case numbers, 4D-220-1066-95<2> and the cases consolidated by the
agency: 4K-220-0096-99, 4K-220-0003-99, 4K-220-0021-99, 4K-220-0032-99,
and 4K-220-0075-99. From the record, we observe that agency case number
4D-220-1066-95 was resolved by the settlement agreement dated February 14,
1996; the consolidated cases, docketed with the Commission as Hearing
Number 100-99-8147X, were resolved by the settlement agreement dated
October 25, 2000.
In its response to complainant's breach allegations submitted on appeal,
the agency concluded in a letter dated June 18, 2004, that complainant's
breach claims concern the agency's denial of his sick leave requests and
denial of his requests for forms pertaining to the filing of claims with
the Office of Workers Compensation Programs (OWCP), clock ring errors,
absences, overtime, and medical bills, are matters which are not addressed
in the February 14, 1996 settlement agreement. The agency therefore found
that no breach of the February 14, 1996 settlement agreement occurred.
The agency notes that complainant's March 17, 2003 request for counseling
included his claims pertaining to denied overtime, clock ring errors, OWCP
forms, and medical bills for an on-the-job injury, but that complainant
chose not to pursue a new complaint. The agency's response does not
address complainant's allegations regarding breach of the provisions of
the October 25, 2000 settlement agreement. We deem the agency, therefore,
to have denied that any breach of the October 25, 2000 agreement occurred.
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).
EEOC regulation 29 C.F.R. � 1614.504 provides that if a complainant
believes that the agency has failed to comply with the terms of a
settlement agreement, he may request that the terms of the agreement
be specifically implemented, or, alternatively, that the complaint be
reinstated for further processing. However, the Commission has held
that a complaint which alleges reprisal or further discrimination in
violation of a settlement agreement's "no reprisal" clause, is to be
processed as separate complaints and not as a breach of settlement.
See 29 C.F.R. � 1614.504(c).
In the instant case, we find complainant's breach allegation letters
allege that the agency has violated provision (6) of the October 25,
2000 settlement agreement, and provision (b) of the February 14,
1996 settlement agreement, regarding the agency's agreement to treat
complainant with dignity and respect. Complainant's letters detail
numerous incidents of harassment, which he alleges are clearly intended to
create a hostile work environment for him. Further, we find complainant
has alleged that provision (3) of the settlement agreement of October 25,
2000, regarding the opportunity to work overtime has been breached.
We find that provision (6) of the October 25, 2000 settlement agreement
and provision (b) of the February 14, 1996 settlement agreement, regarding
the agency's agreement to treat complainant with dignity and respect,
are too vague to be enforced. The record discloses that complainant
received EEO counseling regarding new claims of harassment in agency
case number 4K-220-0071-03. We find that the agency properly counseled
complainant's claims as a new matter and properly issued, on May 13,
2003, complainant a notice of right to file a new complaint (which was
received by complainant on May 17, 2003).<3> Accordingly we find no
breach of provision (6) of the October 25, 2000 settlement agreement
and provision (b) of the February 14, 1996 settlement agreement occurred.
Furthermore, we find that complainant has failed to show that the agency
breached provision (3) of the October 25, 2000 settlement agreement.
Complainant has not indicated any specific date on which he was denied
overtime that he should have been granted under the settlement agreement.
Accordingly, we AFFIRM the agency's determination that complainant failed
to show that the agency breached the February 14, 1996 and the October
25, 2000 settlement agreements.
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
July 14, 2004
__________________
Date
1The record contains several letters from
complainant to the agency alleging both breach of the settlement
agreements (referenced by the agency case numbers and the EEOC Hearing
No. 100-99-8147X) and alleging new claims of discrimination.
2Although the agency actually references 4D-220-1066-96 in the February
25, 2003 letter, the Commission finds that the record indicates
that the correct agency number is 4D-220-1066-95. We note that on
appeal, complainant references 4D-220-1066-95, further indicating that
4D-220-1066-95 is the correct agency number.
3There is no indication that complainant filed a complaint on the matter.