01A13940_r
12-18-2002
Mahmoud Ezzat, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mahmoud Ezzat v. United States Postal Service
01A13940
December 18, 2002
.
Mahmoud Ezzat,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13940
Agency Nos. 4E-800-0134-00
4E-800-0019-98
Hearing No. 320-99-8005X
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated May 15, 2001, finding that it was in
compliance with the terms of a June 14, 2000 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The June 14, 2000 settlement agreement provided, in pertinent part, that:
(2) Complainant has a current request - to transfer to a mail handler;
(3) Complainant will be given the next open mail handler position at
Highlands Ranch, which is anticipated within 3 months. Complainant
will be a part-time flexible schedule (PTFS), with available overtime.
The current PTFS is averaging over 40 hours, and that is not expected
to change. In that position, Complainant will be assigned on Tour 2
or Tour 3 to the extent possible, with Fridays off. The Postal Service
will work to grant consecutive days off, to the extent possible;
(4) When Complainant assumes regular status, his religious practices
will be accommodated by granting him Fridays off to the extent possible,
given the needs of the Postal Service. If the Postal Service must
assign him a Friday, the Postal Service will assign him a shift that
allows his religious observance between 11 a.m. and 6 p.m. The parties
will work together to narrow the time frame as necessary for the needs
of the parties. Complainant will bid the first available Friday off
job opening. The regular status position will be a Tour 2 or Tour 3
assignment to the extent possible; and
(6) Complainant will inspect his OPF. Postal Service will destroy
any documents that are in Complainant's OPF that are not a proper part
thereof, including witness statements and medical records.
By letter to the agency dated April 23, 2001, complainant alleged that
the agency breached provisions (2), (3), (4) and (6). Specifically,
complainant alleged that the agency failed to transfer him to the next
open mail handler position that is the subject of claims (2), (3) and
(4). Complainant also alleged that the agency breached provision (6),
and indicated that the agency breached a �verbal promise� made by an
agency official.
In its final decision dated May 15, 2001, the agency found no breach.
Regarding provision (6), the agency noted that this provision does not
assign responsibility to either party for setting up an appointment
for the review of the OPF. The agency referred to a copy of an agency
(ELMS) handbook for guidance regarding compliance with this provision,
and determined that the handbook mandated that complainant make a
�specific request� to review the OPF, prior to agency compliance with
this provision. The agency did not address complainant's claim that
provisions (2), (3), and (4) were breached.
Regarding the matter relating to a �verbal promise,� the agency noted
complainant's statements in his complaint that an agency official verbally
agreed to commit him to an educational program to teach management/staff
about religions/cultures and pointed out that there is nothing in the
agreement that addresses the educational program. The agency determined
that there was no violation of the agreement concerning committing
complainant to an educational program.
On appeal, complainant argues that the agency failed to address his
breach claims relating to provisions (2), (3), and (4), concerning the
mail handler position identified in those provisions.
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 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).
Regarding provisions (2), (3) and (4), we note that the agency failed
to address these allegations in its FAD. We note that provision (2)
merely outlines complainant's interest in being transferred to a mail
handler position. However, provisions (3) and (4) contain affirmative
agency obligations to place complainant into the �next open mail handler
position� at Highlands Ranch, which was anticipated to open within
three months after the execution of the agreement; once complainant
was so assigned, to provide him with specific tours if possible, with
Fridays off; and to accommodate his religious practices to the extent
possible. Given the lack of evidence in the record regarding these issues,
the Commission is unable to ascertain whether the agency complied with
provisions (2), (3), and (4). Accordingly, these matters are REMANDED
to the agency for further processing in accordance with the Order below.
Regarding provision (6), which indicates that complainant will inspect
his OPF, the agency determined that the settlement agreement is silent
regarding whether complainant or the agency has responsibility �for
setting up an appointment.� The agency therefore relied upon the above
referenced agency handbook in concluding that complainant must make a
�specific request� to inspect his OPF. We find that it is unclear,
due to the silence of the agreement, whether complainant would have been
aware of the requirement that he make a specific request to review his OPF
versus being notified by the agency of the opportunity for such a review.
Therefore, in the interest of preserving the agreement, the Commission
will REMAND this matter to the agency to provide notice to complainant
of the opportunity to inspect his OPF, in accordance with the Order below.
Finally, the Commission notes that the settlement agreement contains
no provision relating to denial of promised educational opportunities.
If complainant wishes to pursue this matter further, he is advised to
contact an EEO Counselor thereon.
ORDER
The agency is ORDERED to take the following actions:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall supplement the record with evidence that reflects
whether it has complied with provisions (2), (3), and (4) by placing
complainant into the next open mail handler position at Highlands Ranch
following execution of the settlement agreement, and if placed in this
position, whether his religious practices were accommodated. Within
thirty calendar days of the date that this decision becomes final, the
agency shall issue a new decision determining whether the agency breached
provisions (2) - (4) of the settlement agreement. A copy of the agency's
new decision must be sent to the Compliance Officer as referenced herein.
2. Regarding provision (6), the agency shall, within fifteen (15)
calendar days of the date that this decision becomes final, provide
complainant the opportunity to inspect his OPF by giving him notice to
contact the agency to schedule an appointment for such an inspection
if he so chooses. 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
December 18, 2002
__________________
Date