01976927
03-04-1999
Mark G. Zyst, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Mark G. Zyst v. United States Postal Service
01976927
March 4, 1999
Mark G. Zyst, )
Appellant, )
) Appeal No. 01976927
v. ) Agency No. 4-J-481-1075-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant timely appealed the agency's final decision finding that it
did not breach the terms of the settlement agreement into which the
parties entered. See 29 C.F.R. ��1614.402, .504(b); EEOC Order No. 960,
as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency breached the terms of the
settlement agreement into which the parties entered.
BACKGROUND
A review of the record reveals that appellant filed a formal EEO
complaint on May 24, 1996, alleging that he had been subjected to
unlawful discrimination on the basis of physical disability (subluxations
of spine). Appellant and the agency settled the complaint on November
25, 1996. The settlement agreement provided, in pertinent part, that:
[]Management will follow the medical restrictions of [appellant's]
doctor of choice and comply with the Employee & Labor Relations Manual
regulations.
By letter to the agency dated July 23, 1997, appellant alleged that
it had breached the settlement agreement. Appellant asserted that
on July 21, 1997, contrary to the medical restrictions issued by his
doctor, appellant was instructed by his supervisor to work overtime.
As remedial relief, appellant requested that the agency specifically
implement the terms of the agreement.
In its final decision dated August 26, 1997, the agency did not dispute
that appellant was forced to work overtime in violation of his doctor's
medical restrictions. However, noting that 29 C.F.R. �1614.504(c)
provides that allegations that subsequent acts of discrimination violate
a settlement agreement shall be processed as separate complaints,
the agency determined that on July 22, 1997, appellant requested EEO
counseling concerning his supervisor's failure to honor appellant's
doctor's restrictions of not working overtime. Based on the foregoing,
the agency denied appellant's request to reopen his prior complaint.
On appeal, appellant argues that the agency erred by treating his
allegation of breach as a request to reopen his prior complaint, and
again requests that the agency specifically implement the terms of
the agreement.
The Commission notes that the record does not contain any information
concerning appellant's purported July 22, 1997 request for counseling.
ANALYSIS AND FINDINGS
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. In addition, 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 consistently held that settlement agreements are
contracts between appellant 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 (5th Cir. 1984).
In the present case, we find that the agency erred in dismissing
appellant's allegations of breach. The face of the settlement
agreement provided that the agency would follow the medical restrictions
of appellant's doctor of choice. Further, there is no dispute that
although appellant's doctor restricted appellant from working overtime,
on July 21, 1997, appellant's supervisor forced him to do so. Based on
the foregoing, we find that the agency was in breach of the November 25,
1997 settlement agreement.
CONCLUSION
Accordingly, the agency's decision to dismiss appellant's complaint is
hereby REVERSED. The agency is Ordered to take the actions as set forth
in the Order below.
ORDER
The agency is ORDERED to specifically implement the settlement agreement
entered into in the instant matter. The agency shall ensure that it
follows the medical restrictions of appellant's doctor of choice and
that it complies with the Employee & Labor Relations Manual regulations.
Evidence showing that the agency complied with this Order must be sent
to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Mar 4, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations