01a00343
05-12-2000
Michael Morcillo, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Southeast/Southwest Area), Agency.
Michael Morcillo, )
Complainant, )
)
v. ) Appeal No. 01A00343
) Agency No. 4H-335-0162-97
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Southeast/Southwest Area), )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated October 1, 1999, finding that it was in
compliance with the terms of the May 27, 1998 settlement agreement into
which the parties entered.<1> See 64 Fed. Reg. 37,644, 37,659, 37,660
(1999)(to be codified and hereinafter referred to as EEOC Regulation 29
C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b); and 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
The settlement agreement provided, in pertinent part, that a Letter of
Warning dated 2/3/97 would be expunged from all of the complainant's
records consistent with a Step 3 resolve date 8/12/97. It was further
understood that complainant would be treated in a fair and equitable
manner consistent with the National Agreement, handbooks and manuals.
By letter to the agency dated August 18, 1999, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement the its terms. The agency responded
in a letter dated August 31, 1999, asking complainant to specify the
alleged violations. On September 5, 1999, complainant alleged that
the agency failed to treat him fairly and equitably consistent with the
settlement agreement. Complainant further stated that during the month
of September of 1998, a Responsible Management Official (position not
identified) or her immediate supervisor deleted complainant's lunch
location at Durango's Restaurant. Complainant further stated this
lunch location was an approved location similar to other employees at
his work location. Complainant also alleges that no other employees
have had their lunch location changed.
Complainant further stated that �since the arrival of [Supervisor A]
. . ., [complainant has] received multiple officials discussions for no
just cause.� Complainant went on to state that �in the same frame she
[Supervisor A] has yelled at me numerous times on the workroom floor.
On Thursday, August 19, 1999, the final two remaining lunch stops were
deleted and replaced by locations of Supervisor [A's] choice. This action
included denying me the use of my home as a lunch and comfort stop.
I need the use of my home to assist me with my disability, as I have for
the past two years on my route. No other employee in my work unit has
suffered this type of action. These actions are nothing but harassment
and inconsistent with the settlement cited above.�
In its October 1, 1999 FAD, the agency concluded that it had not breached
the settlement agreement. Upon inquiry into complainant's allegations,
Supervisor A conceded she had given complainant several discussions;
however, she stated that all the discussions were warranted and were
for just cause. Supervisor A denied yelling at complainant or any other
carrier on the workroom floor. Supervisor A explained that on the day in
question, she informed complainant that his home was not an acceptable
lunch/break location because of the distance involved (specifically,
2.8 miles from his route). After questioning Supervisor A's authority
to change his lunch spot, complainant explained to Supervisor A that
a previous supervisor had approved his lunch spot and that she had
no right to change it. Supervisor A informed the complainant that
he was no longer permitted to use his home as a lunch/break location
and offered him a choice of three lunch/break locations with handicap
facilities closer to his route to choose from. The complainant refused
all of the locations offered. Supervisor A informed complainant that
if he did not pick one of the locations offered that she (Supervisor A)
would pick the lunch/break location.
Supervisor A further stated that in a Step 1 grievance, she requested
that complainant provide documentation stating that there existed a
medical need for him to use his home for lunch/break spots. Complainant
allegedly refused to provide this medical documentation. Supervisor A
informed complainant that she was aware of complainant's condition, but
that if he had a medical need to go home, then she would require medical
documentation stating this fact. Since no medical documentation was
provided, complainant's home was disapproved as a lunch/break location.
Finally, the agency stated that the previous supervisor who had approved
of the complainant's home as a lunch/break spot was an acting supervisor
who had not properly checked the mileage before approving complainant's
home as a lunch/break location.
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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).
In the instant case, the record supports the agency's conclusion that it
is in compliance with the settlement agreement. The agreement explicitly
expressed that complainant would be treated in a fair and equitable
manner consistent with the National Agreement, handbooks and manuals.
Complainant allegations of harassment with regard to the change of his
home as an approved lunch/break location has failed to demonstrate how
this part of the agreement was breached. Finally, involving alleged acts
of harassment, allegations that subsequent acts of discrimination violate
a settlement agreement are processed as separate complaints under 29
C.F.R. � 1614.504(c).<2> In light of the above, we affirm the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
May 12, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
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:
Equal Employment Assistant Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Inasmuch as complainant identified other incidents of alleged
discrimination, he must initiate EEO counseling regarding any new
allegations within 15 days after he receives this decision, if he wishes
to pursue them and he has not already done so. The agency is advised
that if complainant seeks EEO counseling regarding any new allegations
raised on appeal within the above 15-day period, the date complainant
filed the appeal statement in which he raised these allegations shall
be deemed to be the date of the initial EEO contact, unless complainant
previously contacted an EEO Counselor regarding these matters. If there
has been a previous contact, the earlier date would serve as the EEO
counselor contact date. Qatsha v. Department of the Navy, EEOC Request
No. 05970201 (January16, 1998); Parker v. Department of the Army, EEOC
Request No. 05960025 (August 29, 1996).