01A33649
09-03-2003
Jose Lee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jose Lee v. United States Postal Service
01A33649
September 3, 2003
.
Jose Lee,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33649
Agency No. 1-H-328-0001-02
Hearing
No. 150-A3-8034X
DECISION
Complainant appeals to the Commission from the agency's May 16, 2003
decision finding no breach of an April 10, 2003 settlement agreement.
The settlement provided, in pertinent part:
The Agency agrees that they will expunge from complainant's record the
following: Investigative Interview dated 7/16/01, Letter of Warning
dated 9/13/01 and the AWOL charge dated 9/13/01.
Furthermore, the Agency agrees to schedule a meeting between Complainant
and Supervisors within 30 days in an attempt to resolve concerns the
Complainant may have regarding issues that may have arisen subsequent
to the Complainant here in. It is mutually agreed the Complainant's
LWOP concerns will be addressed in this meeting.
The Agency further agrees to treat Complainant with dignity and respect
and will take no retaliatory action for him exercising his right under
the Law.
By letter dated April 24, 2003, complainant notified the agency that
it had breached the settlement agreement. According to complainant, on
April 13, 2003, the Supervisor of Mails attempted to coerce a coworker
to file a meritless grievance against him. Complainant stated that on
April 17, 2003, the Supervisor of Mails issued a Letter of Warning to him
on the grounds of unsatisfactory performance. According to complainant,
the punishment and harassment has continued without abatement despite
the execution of the settlement agreement. Complainant stated that the
agency has continuously refused to treat him with dignity and respect.
Complainant also claimed that the meeting referenced in the settlement
agreement has not yet taken place.
In its May 16, 2003 decision, the agency found no breach of the
settlement agreement. The agency determined that the first provision of
the settlement was fulfilled because the investigative interview, Letter
of Warning, and the AWOL charge were expunged from complainant's record.
The agency further determined that the meeting specified in the second
provision of the settlement took place on May 8, 2003, within thirty
days of the execution of the settlement agreement. As for the Letter of
Warning issued to complainant on April 17, 2003, the agency determined
that it was unrelated to the terms of the settlement agreement, and
could be raised as a new and separate EEO 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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
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 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, 381 (5th Cir. 1984).
Upon review of the record, we find that complainant has not established
that the settlement agreement was breached by the agency. Complainant
has not refuted the agency's position that the meeting referenced in the
second provision of the settlement took place on May 8, 2003. Complainant
also has not challenged the agency's assertion that it has expunged
the investigative interview, the Letter of Warning dated September 13,
2001, and the AWOL charge from his record. With regard to the April 13
and April 17 incidents raised by complainant in his claim of breach,
the Commission has held that a claim of reprisal in violation of a
settlement agreement's no reprisal clause is to be processed as a separate
complaint rather than as a breach of the settlement agreement. See Bindal
v. Department of Veterans Affairs, EEOC Request No. 05900225 (August
9, 1990). Additionally, claims that subsequent acts of discrimination
violate a settlement agreement shall be processed as separate complaints.
29 C.F.R. �1614.504(c). Therefore, if complainant desires to pursue these
separate claims through the EEO process, he must initiate contact with
an EEO Counselor.<1>
Accordingly, the agency's finding no breach of the April 10, 2003
settlement agreement was proper and 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
September 3, 2003
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1We note that the agency states in its response that complainant initiated
an informal complaint on June 17, 2003, with regard to the Letter of
Warning issued to him on April 17, 2003.