01A42381_r
06-16-2004
Louis S. Blanc, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Louis S. Blanc v. United States Postal Service
01A42381
June 16, 2004
.
Louis S. Blanc,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42381
Agency No. 1C-443-0062-00
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated January 29, 2004, finding that it was
in compliance with the terms of a July 20, 2000 settlement agreement.<1>
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The July 20, 2000 settlement agreement provided, in pertinent part, that:
[Supervisor] is not to work, or be present, in the Canton OH Plant,
Main Post Office, at 2650 Cleveland Ave. N.W., while [Complainant]
is employed there.<2>
On May 25, 2002, complainant alleged that the agency breached the
settlement agreement. Specifically, complainant alleged that on May
16, 2002, in the parking lot before his work shift, he thought he saw
the Supervisor named in the settlement agreement at his work site, and
that he was later informed that the Supervisor indeed had been on the
workfloor, in violation of the settlement agreement.
In its July 12, 2002 FAD, the agency found no breach. On appeal, the
Commission found breach; reversed the agency's finding of no breach;
and remanded the matter to the agency. On remand, the agency was
specifically ordered to implement the settlement agreement by assuring
that the Supervisor would not work, or be present, in the Canton,
Ohio Plant, Main Post Office, while complainant is employed there.
Blanc v. USPS, EEOC Appeal No. 01A24904 (March 18, 2003).
By Information for Pre-Complaint Counseling, Form 2564A, dated December
10, 2003, complainant again claimed that the agency breached the
settlement agreement. Specifically, complainant claimed that he was
informed that on December 9, 2003, the Supervisor walked into the Canton,
Ohio Plant, Main Post Office and went into the IPS Room.
In its January 29, 2004 FAD, which is the subject of the instant appeal,
the agency found no breach. The agency stated that according to the
Canton Plant Manager, a Senior Plant Manager sent the Supervisor to the
Canton Post Office to handle a problem. The agency determined that
the Plant Manager stated that the Senior Plant Manager was unaware
of complainant's settlement agreement. The agency further determined
that the Plant Manager stated that as soon as he became aware of the
Supervisor's presence in the Canton Post Office, he immediately notified a
Canton Manager Distribution Operations that the Supervisor was not allowed
in the building; and had the Supervisor escorted out of the building.
Furthermore, the agency determined that the Plant Manager stated that
the Supervisor's security control badge was changed denying him access
to the Canton Post Office.
On appeal, complainant states that the Supervisor "has breached this
settlement 3 times, I am tired of his disregard of the agreement."
Complainant further requests that the Supervisor be held accountable
for his actions and be removed from agency employment.
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).
A review of the record persuades the Commission that the agency breached
the settlement agreement dated July 20, 2000, for the second time.
Regarding the agreement, the agency stated that the Supervisor was
immediately escorted from the Canton, Ohio Plant, Main Post Office, after
the Plant Manager learned of his presence. The Commission determines,
however, that the terms of the settlement agreement expressly provide for
the Supervisor, not to work, or be present in the Canton, Ohio Plant,
Main Post Office while complainant is employed there. Therefore, the
Commission finds that the agency breached the settlement agreement.
To remedy a finding of breach, the Commission may order reinstatement
of the underlying complaint, or enforcement of the agreement's terms.
See 29 C.F.R. � 1614.504(c). We determine that the appropriate remedy is
to order the agency to comply with the terms of the settlement agreement.
The Commission finds that enforcement of the settlement agreement, given
the specific circumstances of this case, is the more appropriate remedy.
Accordingly, the agency's decision finding no breach of the settlement
agreement is REVERSED. This matter is REMANDED to the agency for
further processing in accordance with the Order below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency is ORDERED to undertake the following action:
The agency shall implement the settlement agreement by assuring that the
Supervisor named in the settlement agreement will not work, or be present,
in the Canton OH Plant, Main Post Office, at 2650 Cleveland Ave. N.W.,
while complainant is employed there.
The agency shall notify complainant that the subject settlement agreement
is being implemented. A copy of the agency's notice to complainant must
be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
June 16, 2004
__________________
Date
1The agency inadvertently identified the date
of its FAD as January 29, 2003, instead of January 29, 2004.
2The settlement agreement also provided for the restoration of up
to fifty hours of sick leave. This provision is not at issue in the
instant appeal.