01A42691_r
10-22-2004
Charles E. Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Charles E. Williams v. United States Postal Service
01A42691
October 22, 2004
.
Charles E. Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42691
Agency No. 4G-720-0037-03
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated February 10, 2004, finding that it was in
compliance with the terms of a December 12, 2002 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The December 12, 2002 settlement agreement provided that:
A. Both parties to this agreement shall approach their relationship
and their duties with the goal of increasing their mutual trust.
B. The parties agree the[y] will promote better communication between
them in the following ways:
(1) Each party shall bring unresolved issues to the attention of the
other party in an open discussion.
(2) Clarify policies that affect all employees regarding issues such as
dress code and sick leave.
(3) Avoid Argument. Remind each other that heated discussions will not
resolve issues.
(4) Provide suggestion box to be placed where every employee can make use
of it. Encourage use by prompt response from Supervisor, Postmaster [A].
By letter to the agency dated November 29, 2003, complainant alleged that
the agency breached the settlement agreement. In an additional letter to
the Senior EEO Specialist dated November 29, 2003, complainant stated he
wished to make a formal complaint of harassment against his supervisor
in reprisal for prior protected activity.
On December 4, 2003, the agency responded to complainant's November 29,
2003 letter �requesting to file a complaint,� asking complainant if the
issues in the letter were �the same issues that you believe violated
the terms of your Settlement Agreement.� By letter dated December 30,
2003, complainant responded to the agency's December 4, 2003 letter.
Therein, complainant stated that �there are one or two instances that
overlap but, for the most part they are two separate charges with separate
issues.� Attached to the December 30, 2003 letter was a separate letter
detailing complainant's claims that the agency breached provisions A,
B(1), and B(3).
Regarding provision A, complainant claimed that his supervisor continued
to show distrust for him, and question his honesty and integrity.
Regarding provision B(1), complainant claimed that his supervisor had
gotten progressively worse in refusing to listen to his comments, and
showed disrespect and �lack of concern for communications between us.�
Regarding provision B(3), complainant described incidents on November
24, 2003 and December 4, 2003, where his supervisor instigated arguments
and was �rude and argumentative.�
In its February 10, 2004 decision, the agency first stated that �the
issues� alleged by complainant in his �letters dated November 29 and
December 30, 2003,� were processed as a claim of settlement breach.
The agency then found no breach. The agency specifically determined that
complainant was claiming breach because he was instructed to perform his
duties in an efficient manner by the Postmaster, and that the Postmaster
expected him to perform his duties and abide by the principal of a �fair
day's work for a fair day's pay.�
On appeal, complainant claims that a fair reading of the �Postmaster's
statements and documents� established an agency breach, and that
complainant's November 29, 2003 letter claiming reprisal should have
been treated as a distinct complaint of discrimination and not subsumed
by the settlement breach issue.
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).
In the instant case, complainant claims that the agency breached
provisions A, B(1), and B(3). Upon review, we find that these
provisions of the settlement agreement are unenforceable. We find
that these provisions are too vague to allow a determination as to
whether the agency has complied with these provisions of the agreement.
Given the deficiencies in the aforementioned provisions of the agreement,
we find that their terms are void and unenforceable. Moreover, we
note that the remaining terms in B(2) and B(4) requiring the agency
to �[c]larify policies that affect all employees, �and to �[p]rovide
[a] suggestion box,� do not provide complainant with any particular
distinctive benefit for withdrawing his complaint beyond that given to
all employees. We therefore find that these provisions of the settlement
agreement lack adequate consideration, and are also unenforceable.
See Collins v. United States Postal Service, EEOC Request No. 05900082
(April 26, 1990) (a settlement agreement that was not based upon adequate
consideration was unenforceable). Based on the foregoing, we find that
the entire settlement agreement is unenforceable.
Finally, we find that complainant's November 29, 2003 claim of harassment
in reprisal for prior protected activity is beyond the scope of the
present settlement agreement. We concur with complainant that his claim
of subsequent acts of harassment based on reprisal must be processed
as a new complaint. See 29 C.F.R. � 1614.504(c). Consequently, as
complainant originally contacted the Senior EEO Specialist to initiate
a formal complaint concerning his harassment claim, the agency shall
contact complainant to notify him that informal counseling will begin
on his new claim.
Accordingly, we VACATE the agency's final decision and REMAND the matter
to the agency to undertake the actions set forth in the ORDER below.
ORDER
The agency is ORDERED to take the following action:
1. The agency is ORDERED to resume processing of the underlying matter
that was the subject of the instant settlement agreement from the point
where processing ceased. The agency shall acknowledge to complainant
that it has reinstated and resumed processing of complainant's complaint.
2. The agency is ORDERED to resume processing complainant's new reprisal
claim of discrimination, first raised on November 29, 2003. The agency
shall notify complainant that informal counseling will be initiated on
his new claim, at the conclusion of which, he shall be issued a notice
of the right to file a discrimination complaint in accordance with 29
C.F.R. � 1614.105(d).
A copy of the letter notifying complainant of the reinstatement of
his underlying complaint, as well as a copy of the agency's letter
of notifying complainant of the resumed processing of his new claim
of discrimination, must be submitted to the Compliance Officer as
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
October 22, 2004
__________________
Date