01a52231
10-17-2005
James K. Martin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James K. Martin v. United States Postal Service
01A52231
October 17, 2005
.
James K. Martin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52231 Agency No. 1-C-404-0017-04
DECISION
The record reveals that on October 20, 2004, complainant and the agency
entered into a settlement agreement regarding complainant's EEO complaint.
The settlement provided in pertinent part as follows:
1. [Manager] will speak to all supervisors and the Manager, Distribution
Operations notifying them that laughing and taunting is unacceptable.
2. [Complainant] will only be paged by intercom when specifically needed.
Supervisors will be notified to page [Complainant] by asking other
employees to notify him of their need and to what section to report
when needed.
3. [Complainant] will notify a supervisor or [the Manager] when issues
arise regarding laughing or taunting.
By letter dated November 5, 2004, complainant requested that his complaint
be reinstated. Complainant stated that a 204-B Supervisor harassed
him regarding the intercom issues relating to his hearing disability.
Complainant also stated that the 204-B Supervisor caused him to have an
accident by being in his path on the forklift, and is requiring him to
take a refresher course.
By letter dated November 9, 2004, the agency responded to this letter
by requesting that complainant clarify his claim by answering several
questions.
In his response, complainant identified the 204-B supervisor that
allegedly harassed him on October 28, 2004. Complainant acknowledged
that he did not contact the Manager about the harassment because he does
not trust him.
By decision dated December 3, 2004, the agency determined that it
had not breached the settlement agreement. The agency noted that the
Manager stated that he has informed all of his Managers, including 204-B
Supervisors, that laughing and taunting complainant is not acceptable
behavior and will be considered for possible disciplinary action.
The agency noted that complainant failed to notify the Manager of the
alleged incident even though the settlement agreement provided that
complainant would notify a Supervisor or the Manager when issues arise
regarding laughter or taunting. The agency stated that complainant's
claim regarding a tow motor accident will be addressed separately.
Thereafter, complainant filed the instant appeal.
In response, the agency asserts that complainant failed to comply with his
obligation under the settlement agreement to notify a proper authority
of any unacceptable behavior exhibited toward him by another employee.
The agency notes that the Manager stated that either he or the respective
Managers, Distribution Operations informed his supervisors of the
acceptable way in which to page complainant over the intercom.
The Commission has consistently 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, 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 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, 381 (5th Cir. 1984).
Complainant contended that the agency breached the settlement agreement
when he was harassed by a 204-B Supervisor on October 28, 2004.
However, complainant has not specifically identified the provision of the
settlement agreement that was breached. With regard to the settlement
provisions that could be at issue, we find that complainant has not
refuted the Manager's statement that all supervisors and the Manager,
Distribution Operations were notified that laughing and taunting is
unacceptable. Complaint also has not established that the agency breached
the second provision of the settlement agreement with regard to how he
should be paged. We find that complainant has not established that the
agency breached the settlement agreement. Complainant is advised to
promptly contact an EEO Counselor with regard to any issues raised in
his letter dated November 5, 2004, that he wishes to pursue and that do
not allege breach of the settlement agreement.
Therefore, the agency's decision finding no breach of the October 20,
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
October 17, 2005
__________________
Date