0120110887
05-18-2011
Randall M. Zelznick, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Randall M. Zelznick,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120110887
Agency No. 1C191004107
DECISION
Complainant filed an appeal with this Commission from a final
determination by the Agency dated October 27, 2010, finding that it was
in compliance with the terms of the 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. For the following reasons, the Commission
AFFIRMS the Agency’s final determination
BACKGROUND
The settlement agreement provided, in pertinent part, that:
(15) [Complainant] understands that, by settling this EEOC complaint,
the Postal Service admits no liability or fault for any action or inaction
taken at any time during [Complainant’s] employment…
(17) The Postal Service specifically denies that is has engaged in any
improper or actionable conduct with regard to [Complainant] up to the date
of this Agreement…It is specifically understood that the execution
of this Agreement shall not be construed as an admission of guilt,
wrongdoing, or a violation of [Complainant’s] rights in any respect,
or liability by the Postal Service, its officers, agents or employee.
By letter to the Agency dated October 22, 2010, Complainant alleged
breach. Complainant stated that he discovered that his name and prior
EEO activity were mentioned in an Arbitration Award concerning the
removal of the co-worker (CW1) Complainant alleged had subjected him to
a hostile work environment. Specifically, Complainant argues that the
Agency violated the settlement agreement by stating that it “incurred
liability as the result of the threatening and harassing behavior”
CW1 displayed toward Complainant, and that Complainant’s complaint
“had to be settled for a considerable amount of money because of the
pressure exerted by [CW1] against [Complainant].” Arbitration Award,
USPS v. APWU, USPS No. C06T-1C-D-08336070.
In its October 6, 2010 final determination, the Agency found no breach.
The Agency stated that CW1 was “removed from the Postal Service in
part due to creating a hostile work environment for [Complainant]”
and therefore, information regarding Complainant’s EEO complaint was
relevant to the grievance and Arbitration Award at issue. Further, the
Agency stated that there is no provision of the settlement agreement
prohibiting Agency officials from “providing affidavit testimony
in an arbitration against a former employee.” Accordingly, the
Agency found that it was in compliance with the settlement agreement.
The Agency also noted that although the Arbitration Award was issued on
June 5, 2010, Complainant did not contact the Agency’s EEO office to
allege breach of the agreement until October 2, 2010, which is beyond
the 30-day limitation period prescribed by EEOC regulations. As such,
the Agency determined that Complainant failed to contact the EEO office
regarding his breach claim in a timely matter.
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. 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. Dep't
of Def., EEOC Request No. 05960032 (Dec. 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. Dep't 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. U.S. Postal
Serv., EEOC Request No. 05910787 (Dec. 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).
Here, without ruling on the timeliness of Complainant’s breach claim,
we find that the evidence of record does not establish that the Agency
violated the settlement agreement. In so finding, we note that although
the terms stipulate that by signing the agreement the Agency admits
no fault or liability, the settlement agreement does not prohibit
the Agency from acknowledging the potential liability created by CW1s
actions. Additionally, we find that the settlement agreement contains no
confidentiality provision and, therefore, the Agency did not breach any
terms of the agreement when Agency officials provided testimony regarding
the agreement in conjunction with the Arbitration Award at issue.1
CONCLUSION
The Commission affirms the Agency’s final determination finding that
it did not breach the settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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
May 18, 2011
__________________
Date
1 We note that Complainant does not contend that the Agency failed to
satisfy the terms of the agreement requiring the Agency to restore him to
his full-time regular position, provide him with back-pay and benefits,
and pay him compensatory damages and attorney fees and costs.
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0120110887
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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