0120070685
01-26-2009
Horace Miles, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Horace Miles,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120070685
Agency No. 1G-772-0001-06
DECISION
Complainant filed an appeal to this Commission after an Administrative
Judge (AJ) dismissed his complaint on the basis that the parties had
signed a settlement agreement regarding his complaint. The agency did
not issue a final order after the AJ issued the order of dismissal.
In a formal EEO complaint signed February 11, 2006, complainant alleged
that the agency subjected him to discrimination on the basis of race
when on November 19, 2005, the agency searched his vehicle and locker,
and subsequently, he was issued a Notice of Removal charging him with
"Improper Conduct-Removal Mail Items from Mail Stream/Failure to Follow
Instructions," effective January 20, 2006.
The record reveals that complainant filed a grievance in which he alleged
that in November 2005, the agency removed him for allegedly possessing
postal property in his vehicle.
Subsequently, the parties entered into a settlement agreement that stated
that the parties agreed to settle the grievance. The settlement agreement
further stated, in pertinent part, the following:
1. The Notice of Removal dated December 14, 2005, for Improper
Conduct-Removing Mail Items from the Mail Stream/Failure to Follow
Instructions, issued to [complainant], is hereby reduced to a time-off
suspension.
2. The employee is to be reinstated back to his former position no later
than April 29, 2006.
3. [Complainant] is to be back paid a lump sum of $5,928.52. This back
pay settlement fully resolves any and all past or future claims to back
pay regardless of circumstance. The payment for this amount will be
initiated at the Houston District Office.
It is further agreed that the above Resolution is reached on a
non-precedent setting basis; it does not constitute a waiver of either
party's position on this or on other similar issues or cases, and it
is not to be used, cited, or referenced by either party in any future
case which may arise. This Resolution fully resolves all EEO, MSPB,
NLRB, or any complaints in any other forum that are associated with
this grievance. The parties also agree that there are no outstanding
and unresolved information requests associated with this grievance.
This Resolution was made in good faith and was not made under threats,
coercion, or guile by either party.
Complainant subsequently asserted to the AJ that the last paragraph of
the settlement agreement was not included in the version of the agreement
that he had signed. On September 6, 2006, the AJ issued a show cause
order which directed complainant to produce the copy of the settlement
agreement that complainant maintained he had signed. Complainant failed
to produce the document as ordered, and the AJ dismissed complainant's
complaint on September 14, 2006.
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).
We determine that the grievance settlement agreement resolved
complainant's EEO complaint because complainant's settled grievance and
EEO complaint both concern complainant's removal, and the settlement
agreement contains terms specifically tailored to remedy complainant's
EEO complaint, including the reduction of the removal to a suspension;
reinstatement of complainant; and, back pay. Thus, we find that
complainant settled his EEO complaint through the grievance settlement
agreement.
Regarding complainant's contention that the settlement agreement was
altered, we find that complainant has failed to provide any evidence
to substantiate his claim, despite being given ample opportunity to
do so. Moreover, even on appeal, complainant failed to provide any
evidence supporting his claim that he signed a different version of
the agreement.
CONCLUSION
Accordingly, the Commission AFFIRMS the AJ's dismissal of complainant's
complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
_January 26, 2009_________________
Date
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0120070685
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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