01a02488
11-17-2000
Ricky A. Muzny, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ricky A. Muzny v. United States Postal Service
01A02488
11-17-00
.
Ricky A. Muzny,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02488
Agency No. 4G-730-0114-99
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated January 10, 2000, finding that it was
in compliance with the terms of the May 20, 1999 settlement agreement
into which the parties entered.<1> See EEOC Regulation 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement (SA) provided, in pertinent part, that
complainant �will not be questioned on his 3996 [a form for a letter
carrier to request auxiliary help/overtime] when he puts down that he
is ill except when medical conditions may impair work safety.�
Complainant filed an informal request for counseling on November 28,
1999, in which he alleged (along with another allegation) that the agency
was in breach of the SA. In the course of EEO counseling, he requested
that the agency amend the terms of the SA in some unspecified manner.
Complainant alleged that on November 6, 1999, the carrier supervisor
(MO-1) violated the SA when he returned complainant's 3996 to him
with complainant's request denied and the reason for needing overtime
(�fatigue�) circled, accompanied by the notation �? letter carrier.�
In its January 10, 2000 FAD, the agency concluded that it had not breached
the SA because MO-1, complainant's immediate supervisor, was �unaware of
the SA at the time of his denial for auxiliary assistance on November 6,
1999.� It stated that MO-1 was now aware of the SA and would abide by
that SA. It also suggested that complainant, in the future, word future
requests for assistance with the phrase �ill,� rather than �fatigued.�
The agency denied complainant's request to amend his SA.
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.
That section further provides that if the complainant believes that the
agency has failed to comply with the terms of a settlement agreement,
the complainant shall notify the Director of Equal Employment Opportunity
of the alleged noncompliance with the settlement agreement within 30
days of when the complainant knew or should have known of the alleged
noncompliance. 29 C.F.R. � 1614.504(a). The complainant may request
that the terms of the settlement agreement be specifically implemented
or request that the complaint be reinstated for further processing from
the point processing ceased. Id.
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 reviewing settlement agreements to determine if
there is a breach, the Commission is often required to ascertain the
intent of the parties and will generally rely on the plain meaning rule.
Wong v. U.S. Postal Service, EEOC Request No. 05931097 (April 29, 1994)
(citing Hyon O v. U.S. 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, then its meaning must be determined from the
four corners of the instrument without any resort to extrinsic evidence
of any nature. Id. (citing Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984)).
In the instant case, we find that the agency had violated
complainant's SA when MO-1 clearly questioned the complainant's need
for assistance/overtime. The SA had been signed by complainant and
the facility station manager in May 1999. The agency was responsible
for implementing the SA, which would, it seems, include notifying
complainant's supervisors of the provisions of that SA, since those
supervisors would be the management officials most likely to be handling
complainant's requests for assistance/overtime. We find that the agency
breached the term of the SA and that the terms should be specifically
implemented.
We also find that complainant is claiming that the breach of his
SA is one incident in a pattern of incidents that are evidence of a
hostile work environment based on his physical disability and reprisal.
Those other incidents are also the subject of appeals to this Commission
in EEOC Appeal Nos. 01A02904, 01A04172, and 01A04173. We conclude that
the Commission's finding of breach should be investigated as background
evidence to those other incidents, as part of the pattern of a hostile
work environment.
CONCLUSION
Accordingly, the decision of the agency is REVERSED and the agency is
ordered to comply with the order below.
ORDER
The agency is ORDERED to specifically implement the terms of the SA
signed on May 20, 1999, and is also ordered to use the finding of breach
as background evidence in the consolidated investigation of EEOC Appeal
Nos. 01A02904, 01A04172, and 01A04173.
The agency shall acknowledge to the complainant that it has received
the finding of breach, and shall also acknowledge that it will use the
finding as background evidence in the investigation of the consolidated
EEOC Appeal Nos. 01A02904, 01A04172, and 01A04173, within thirty (30)
calendar days of the date this decision becomes final.
A copy of the agency's letter of acknowledgment to complainant must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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
__11-17-00________________
Date
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:
__________________
Date
______________________________
1 On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.