01A24428_r
07-16-2003
Eddie R. Ramsey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Eddie R. Ramsey v. United States Postal Service
01A24428
July 16, 2003
.
Eddie R. Ramsey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A24428
Agency Nos. 1-H-302-1074-95 and 4-H-300-0298-00
Hearing No. 110-96-8302X
DECISION
Complainant appeals to the Commission for a determination of whether
the agency breached settlement agreements between the parties.
In a decision dated November 24, 1998, the Commission found, as previously
determined by an Administrative Judge (AJ), that the agency discriminated
against complainant based on race (Native American/Caucasian) when:
(1) he was not selected for the position of Supervisor, Maintenance
Operations, EAS-16; and (2) the agency kept him from participating in
the 204-B Acting Supervisor Program. The Commission, in pertinent part,
ordered the following relief:
3. Within sixty (60) days of the date of receipt of this decision,
the agency shall conduct a supplemental investigation in order to
determine the appropriate amount of compensatory damages due [complainant]
because of the agency's discriminatory nonselection of him as him for a
supervisory 204-B detail and the EAS-16 Supervisor position in (1) above.
4. The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation of the
agency's calculation of backpay and other benefits due [complainant],
including evidence that the corrective action has been implemented.
On July 16, 1999, the parties resolved complainant's complaint by entering
into an EEOC Global Settlement agreement, which provided, in pertinent
part, that complainant would receive the following:
1. The agency agrees to pay [complainant] a lump sum of $30,000.00
(thirty thousand and no/100 dollars) within 60 days. Specifically, the
check will be given to [complainant], personally or by certified mail,
on or before September 16, 1999.
2. The agency agrees to reassign [complainant] to Tour 1, with off days
of Sunday and Monday, within two (2) weeks of signing this agreement.
This combination of off days does not coincide with any other Supervisor
of Maintenance Operations scheduled off days, so it should not create
a hardship on the agency.
5. Complainant agrees to the withdrawal of all active EEO grievances
and complaints he has filed as of the date of this agreement.
On June 6, 2000, the parties entered into another EEOC Settlement
agreement which states,
The Letter of Warning dated January 11, 2000, charging [complainant] with
improper conduct will be removed effective June 9, 2000. No reprisal
will be taken against him for filing this complaint.
By letter dated in August 2002, complainant alleged that the agency
was in breach of settlement agreements. Specifically, complainant
alleged that the agency has not complied with Orders 3 and 4 of the
Commission's decision dated November 24, 1998. Additionally, complainant
alleged breach of stipulation 2 in the EEOC Global Settlement agreement
dated July 16, 1999. He stated that he was currently reassigned to the
Decatur Post Office on Tour 2. Moreover, complainant alleged breach
of settlement regarding the Letter of Warning dated January 11, 2000.
Further, complainant alleged the agency unlawfully denied him leave under
the Family Medical Leave Act (FMLA). Finally, complainant alleged that
he was not selected for the position of Manager, Maintenance Operation,
Tour 2.
By letter dated November 27, 2002, the agency concluded that it was in
compliance with the settlement agreement. The Commission will consider
the agency's November 27, 2002 letter to be the agency's decision finding
no breach of the settlement agreement. Thus, complainant's appeal is
properly before the Commission.
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 complainant allegation that the agency has not complied with
Orders 3 and 4 of the Commission's decision dated November 24, 1998,
we find that the matter was settled. The record clearly indicates
that, in a letter dated on July 28, 1999, the agency requested that the
Commission that dismiss complainant's EEO complaint and return to the
agency for closure inasmuch as complainant withdrew the EEO complaint
per item 5 of the EEOC Global Settlement agreement. By a letter dated
in August 1999, the Commission advised complainant that the agency had
notified them that his complaint had been resolved. As a result, the
Commission indicated that no further compliance monitoring activity was
required and complainant's compliance file, 06990286, was now closed.
In another letter dated May 18, 2000, the Commission informed complainant
that his petition for enforcement, 04990042, was being closed because
a settlement agreement was reached in his case.
As to stipulation 2 in the EEOC Global Settlement agreement dated July 16,
1999, we find that complainant has failed to show that the agency breached
this provision of the July 1999 settlement agreement. The record reveals
that complainant was assigned to Tour 1 with Sunday and Monday off days in
August 1999. However, on February 1, 2002, approximately 2 � years later,
complainant was removed from his Level 16 position, placed on emergency
off-duty status for inappropriate conduct, and subsequently issued a
Proposed Removal Letter dated May 6, 2002. A Notice of Decision dated
June 19, 2002, was issued complainant reassigning him to the Decatur
Post Office to the position of Electronic Technician, PS 09 on Tour 2.
We note that the settlement agreement does not guarantee that complainant
would never be reassigned.
In terms of the Letter of Warning dated January 11, 2000, we find that
complainant has failed to show that the agency breached this provision of
the June 2002 settlement agreement. The record reveals that the Letter
of Warning was removed.
With respect to complainant's assertion that the agency unlawfully denied
him leave under the Family Medical Leave Act (FMLA), the record reveals
the issue was heard before an EEOC AJ and the agency issued a final
decision on June 7, 2001. This case is now pending before the Commission.
In relation to complainant allegation that he was not selected for the
position of Manager, Maintenance Operation, Tour 2, this case is now
pending before the Commission.
To the extent that complainant is alleging subsequent acts of retaliation
occurred, he should contact an EEO Counselor pursuant to 29 C.F.R. �
1614.105 if he wishes to pursue a separate complaint of discrimination
under 29 C.F.R. � 1614.106. The Commission does not address in this
decision whether such claim would be properly dismissed for any reason
pursuant 29 C.F.R. � 1614.107.
The record indicates that complainant has already filed various complaints
of discrimination alleging retaliation.
According, the agency's decision is hereby 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
July 16, 2003
__________________
Date