0120083059
12-18-2008
Paul Juarez, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Paul Juarez, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083059
Agency No. 1F-937-0027-02
DECISION
JURISDICTION
Complainant filed a timely appeal with this Commission from an agency
decision, dated June 10, 2008, finding that it was in compliance with
the terms of the June 28, 2006 settlement agreement into which the
parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);
and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part:
(1) If either party enters the work area of the other party, the
person whose work area was entered may leave his work area to apprise
his supervisor that the other person was in his work area if he feels
that a problem may occur.
(2) In the event that any allegations are alleged by one party or
the other against the other and it cannot be determined who is at fault,
then corrective disciplinary action will be taken equally against both
parties, up to and including termination.
(3) If it is needed to fully implement this agreement, [Employee K]
and his representative may be notified of this agreement.
On February 21, 2008, complainant requested counseling and alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant contended "from April 2002 to present [Employee K] has
continued harassing me in various ways including coming into my work
area." He had brought the matter to management's attention, but the
harassment continued. Complainant alleged that the "contract has been
breached by management for almost six years...."
In its June 10, 2008 decision, the agency concluded that the settlement
agreements were not breached. Specifically, the agency referenced
two agreements, one dated June 28, 2006 as well as the April 4, 2002
agreement. According to the agency, the 2006 agreement resolved Case
No. 1F-937-0016-06, and provided:
The agency agrees to treat Counselee with dignity and respect in the
workplace and not single him out.
The agency explained that on April 16, 2008, a supervisor and a Manager,
Distribution Operations (MDO-F) met with complainant regarding the alleged
breaches, in particular complainant's belief that the Tour 3 Mailhandlers'
break schedule was not being enforced and that he was being singled
out with respect to breaks. The supervisor told complainant that he
would work on a new break schedule, and on May 11, 2008 a preliminary
schedule was posted. According to the MDO-F, the final schedule would
be issued following a meeting between the mail handler's focus group
and a manager.
With respect to the April 4, 2002 agreement, a manager stated that
management cannot prevent complainant and Employee K from interacting with
each other, since they work in the same building, but that the expectation
is that they will conduct themselves in an appropriate business manner.
The agency concluded that all other terms of the two settlement agreements
had been executed, and there was no breach. Complainant filed the
instant appeal.
Complainant argues on appeal that, regarding the June 2006 agreement,
his breach claim "was against SDO [Supervisor, Distribution Operations
M]". While the decision referenced the actions of other managers,
complainant argues there was no statement from SDO-M. Specifically,
complainant asserts that "the breach was against [SDO-M] for continuing
to retaliate against me any time she is supervising me or acting MDO."
Complainant emphasized that "the break schedule is not the breach."
With respect to the April 2002 agreement, complainant contends on
appeal that he has spoken daily to MDO [F] about Employee K being in
his work area. Even after MDO-F spoke with Employee K, and reassured
complainant that he would not longer come into complainant's work area,
the alleged harassment by Employee K continues.
In response, the agency argues that the instant appeal is a duplicate
of Paul Juarez, Jr. v. United States Postal Service, EEOC Appeal
No. 0120070116 (April 5, 2007). The agency requests that the Commission
close the appeal.
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).
As an initial matter, the Commission finds that the agency erroneously
concluded the appeal is a duplicate of Appeal No. 0120070116. Our earlier
decision addressed the agency's dismissal of an August 16, 2006 complaint
for failure to state a claim. There is no reference to the settlement
agreements presently at issue.
With respect to the April 2002 settlement agreement, complainant argues
that the agency continues to breach the agreement, by failing to stop
Employee K from coming into his work area and harass him. As noted
above, the agreement allows for complainant to inform his supervisor
that Employee K is in his work area. Complainant states that he has
regularly notified management of Employee K's presence, to no avail;
the harassment continues. We find that the language of the agreement
does not address how the conduct of Employee K should specifically
be addressed. We find that complainant's claim should not have been
considered a breach allegation but instead a new complaint of harassment.
Consequently, if complainant believes that Employee K's or management's
actions are discriminatory harassment, he should contact an EEO Counselor
if he wishes to pursue the matter through the EEO process.1
Regarding the June 28, 2006 settlement, we note that the instant record
does not contain a copy of the agreement. In its decision, the agency
describes provision (1) which purportedly requires the agency to "treat
Counselee with dignity and respect in the workplace...." However,
the agency decision also refers to the creation and enforcement of a
break schedule. Complainant, on appeal, states that the alleged breach
does not concern the break schedule but rather the alleged harassment
by a supervisor. Since both the June 2006 agreement and complainant's
allegation of breach, with respect to that agreement, are absent from the
record the Commission is unable to make a determination regarding breach.
Consequently, the matter is remanded to the agency for a supplemental
investigation.
CONCLUSION
The agency's finding of no breach is AFFIRMED in part, with respect
to the April 2002 settlement agreement, and VACATED in part, regarding
the June 2006 agreement. The matter of the alleged breach of the 2006
agreement is REMANDED to the agency for a supplemental investigation in
accordance with the Order below.
ORDER
Within sixty (60) calendar days from the date this decision becomes final,
the agency is ordered to take the following actions:
(1) Contact complainant in writing and ascertain precisely which actions
complainant believes constituted a breach of the 2006 agreement.
(2) Determine whether complainant has presented an allegation of breach
or a claim of discriminatory harassment. If complainant has alleged
non-compliance with the 2006 settlement, the agency shall issue a new
decision on whether or not it has breached the agreement.
(3) A copy of the letter to complaint, as well as the new final decision,
if issued, must be submitted to the Compliance Officer as referenced
below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M0408)
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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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, 2008
Date
1 Should complainant wish to pursue this matter through the EEO process,
the date on which complainant first advised the agency of this supposed
breach will be deemed to be the date of his initial contact with an EEO
Counselor for purposes of determining the timeliness of counseling.
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2
0120083059
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083059