01995103
07-19-2000
David A. Gomez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
David A. Gomez v. United States Postal Service
01995103
July 19, 2000
David A. Gomez, )
Complainant, )
)
v. ) Appeal No. 01995103
) Agency No. 1F-951-0013-99
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Complainant timely appealed the agency's decision not to reinstate
his complaint of unlawful employment discrimination that the parties
had settled.<1> See 64 Fed. Reg. 37,644, 37,659-37,660 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.402(a),
� 1614.405, and � 1614.504).
The record indicates that on March 5, 1999, the parties entered into
a settlement agreement resolving complainant's pre-complaint filed on
January 28, 1999, concerning racial remarks and slurs written on his
work area. The settlement agreement provided, in part, that:
Stand-ups will be held with all employees concerning graffiti, racial
slurs, and defacing of government property on Tour I.
By letter dated March 23, 1999, complainant alleged that the agency
breached the settlement agreement. Specifically, complainant indicated
that the agency failed to give stand-ups to all employees on Tour I.
On May 12, 1999, the agency issued its decision stating that it complied
with the terms of the settlement agreement. In her letter dated May
6, 1999, the Manager of Tour I stated that stand-ups were conducted in
accordance with the settlement agreement. In support of her contentions,
the Manager submitted a copy of Tour I supervisors' memoranda indicating
that stand-ups, concerning graffiti, racial slurs, and defacing of
government property, were held at pay location 264 on April 16, 1999;
operation 119 on March 5, 1999; pay locations 122, 121, 120, 125, and
127 on April 22, 1999; and pay locations 123 and 129 on May 6, 1999.
On appeal, complainant contends that based on a random survey of employees
in all operations, over 60% of Tour I employees have not had stand-ups,
and no stand-ups were held until he claimed the agency's noncompliance
with the settlement agreement. Complainant also states that in May 1999,
he was assigned out of schedule overtime on Tour II.
EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant
believes that the agency failed to comply with the terms of a settlement
agreement, the complainant should notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of when the complainant knew or should
have known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point processing ceased.
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 Commission has held that 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 addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule
when interpreting settlement agreements. The Commission's policy in
this regard is based on the premise that the face of the agreement best
reflects the understanding of the parties.
Upon review, the Commission finds that the agency did not breach the
settlement agreement at issue. The agency submitted a copy of Tour I
supervisors' statements clearly indicating that stand-ups were conducted
in accordance with the settlement agreement. On appeal, complainant
contends that the agency did not conduct stand-ups until he claimed
noncompliance with the settlement agreement. However, the Commission
notes that the settlement agreement did not provide for the specific time
period during which the agency was required to conduct stand-ups. The
Commission finds that the agency's completion of stand-ups by May 6,
1999, approximately 60 days after the settlement agreement, was within
a reasonable period of time. Furthermore, the Commission notes that
complainant's assertion, i.e., over 60% of Tour I employees have not
had stand-ups, is not supported by any evidence in the record.
With regard to complainant's reprisal claim, i.e., concerning his
assignment of out of schedule overtime on Tour II, or further
discrimination on the part of the agency violated the settlement
agreement, the Commission finds that the matter should be processed
as a separate complaint under 64 Fed. Reg. 37,644, 37,656 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.106)
rather than as a claim of noncompliance with a settlement agreement.
See also Anthony v. Department of Education, EEOC Request No. 05910142
(April 18, 1991).
Accordingly, the agency's decision not to reinstate the settled matters
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 19, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to
all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as
amended, may also be found at the Commission's website at www.eeoc.gov.