01A20878_r
02-28-2002
Michael J. Hillion, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael J. Hillion v. United States Postal Service
01A20878
February 28, 2002
.
Michael J. Hillion,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20878
Agency No. 4-F-920-0034-01
DECISION
By letter dated June 5, 2001, complainant alleged breach of a February 16,
2001 settlement agreement entered into by the parties. On November 16,
2001, complainant appealed to this Commission, writing in response to
a �decision denying a breach has occurred.� The settlement agreement
provided, in pertinent part, that:
[The] telephone in BMEU will be reinstalled today without restrictions,
and [complainant] will be provided with the means to do his job as
necessary as others allowed. [A]ccommodation for [complainant's] hearing
loss will be provided. Incoming telephone calls will not be screened.
In his June 5, 2001 letter, complainant asserted that management forbade
complainant from using the phone for bulk mail and mail classification
business without permission. Complainant contends that no other employee
is required to ask permission before carrying out his or her duties
on the telephone. Complainant requests that the agency reopen his
underlying discrimination complaint. On appeal, complainant reiterates
that he was not allowed to use the telephone as necessary to do his job.
The agency contends that the present appeal is identical to others,
currently pending on appeal as EEOC Appeal Nos. 01A13573 and 01A15338.
The Commission disagrees. The agency failed to provide a copy of its
decision finding no breach of the settlement agreement, nor any other
information concerning its processing of complainant's breach claim.
Any settlement agreement knowingly and voluntarily agreed to by the
parties, reached at any stage of the complaint process, is binding on both
parties. See 29 C.F.R. � 1614.504(a). 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 parties' intent as
expressed in the contract, not some unexpressed intention, 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 generally has 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 instant case, the agreement provides for the agency to reinstall
the telephone �without restrictions,� and to grant complainant the
means to perform his job duties. Complainant has alleged, without
contradiction, that he needs to use the telephone in order to perform
his job duties, and the agency prohibited him from doing so. Therefore,
the Commission finds breach of 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). The Commission finds, given the ongoing
review of his underlying complaints, that specific enforcement of the
agreement is a more appropriate remedy.
CONCLUSION
Accordingly, the agency's finding of no breach is REVERSED, the matter is
REMANDED for enforcement of the terms of the February 16, 2001 settlement
agreement.
ORDER
The agency is ordered to enforce the terms of the February 16,
2001 settlement agreement. Such enforcement must include allowing
complainant to use the telephone in the course of performing his work
duties, as described in the settlement agreement. Within thirty (30)
calendar days of the date this decision becomes final, the agency must
cease any restrictions on complainant's use of the telephone in order
to carry out his work duties. Within the same time frame, the agency
must provide complainant with a letter acknowledging the breach, and
notifying complainant of its continuing duty to implement the terms of
the agreement. A copy of this letter must be sent to the Compliance
Officer as referenced herein.
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
February 28, 2002
__________________
Date