01a45935
03-11-2005
Enrique Martinez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Enrique Martinez v. United States Postal Service
01A45935
March 11, 2005
.
Enrique Martinez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45935
Agency No. 4F-956-0073-04
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated August 12, 2004, finding that it was in
compliance with the terms of the April 6, 2004 settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(4) Management commits to being responsive to employee complaints about
these issues when reported. Management will follow up with investigations
and will get back to the employee.
(5) Postmaster will maintain an open door policy.
By letter to the agency dated July 30, 2004, complainant alleged that the
agency was in breach of the settlement agreement and requested that the
agency reinstate his EEO complaint. Specifically, complainant claimed
that the agency failed to properly investigate an incident that allegedly
occurred in July 2004 between complainant and another employee, along
with incidents involving other employees between May 5 and July 16, 2004.
Complainant further alleged that Supervisor denied him the right to have
a union representative present with him during a meeting regarding the
July incident and that Officer-in-Charge (OIC) was overheard stating
�consider the source� to Supervisor and Shop Steward when discussing
complainant's request to file a complaint.
In its August 12, 2004 Letter of Determination, the agency found no
breach. The agency determined that management officials sufficiently
investigated complainant's complaint.
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, we find that the agency has not breached the terms of
the April 6, 2004 settlement agreement. The record contains OIC's signed
statement indicating that Supervisor investigated complainant's complaint
regarding the July 2004 altercation and that no formal discipline was
issued to either the complainant or the other employee involved.<1> OIC
indicated that Supervisor initially denied complainant the right to union
representation at a meeting to discuss the July 2004 incident because
Supervisor was under the assumption that complainant did not have the
right to union representation since Supervisor was not proposing formal
discipline. However, complainant was ultimately allowed to meet with
a union representative before the meeting. Finally, OIC acknowledged
that he did state �consider the source� after he learned complainant was
involved in a �shouting match� with another employee and reiterated that
Supervisor conducted the investigation of complainant's complaint.
Based on a review of the record, we find that the agency complied with the
above referenced provisions of the settlement agreement. Accordingly,
the agency's final decision finding no breach of the April 6, 2004
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
March 11, 2005
__________________
Date
1OIC's statement also indicated that two supervisors investigated the
other complaints complainant cited in his breach of settlement letter,
and no formal discipline was issued to any of the parties involved in
those incidents.