01A32658_r
08-07-2003
Steven R. Pena, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Steven R. Pena v. United States Postal Service
01A32658
August 7, 2003
.
Steven R. Pena,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A32658
DECISION
Complainant filed a timely appeal with this Commission from an agency
final determination dated February 18, 2003, finding that it complied
with an October 19, 2001 settlement agreement. The Commission accepts
the appeal. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29
C.F.R. � 1614.405.
The October 19, 2001 settlement agreement provided, in pertinent part,
that:
(1) Management agrees that [a named management official] will go over
the update process for the Maintenance Career Assistance Guide with
[complainant]. If further assistance is needed, it will be provided by
manager [named management official].
(2) [Complainant] agrees to promptly bring any issues regarding
harassment, hazing and/or taunting to management's attention, and it
will be addressed promptly and appropriately.
On December 20, 2002, complainant contacted an EEO Counselor, claiming
breach of the above referenced provisions, and also set forth additional
claims of discrimination and harassment. Specifically, complainant avers
that the agency breached provision 1 by failing to provide career guidance
or make available proper training that would allow him to obtain the
qualifications needed for promotion. Additionally, complainant claims
that the agency breached provision 2, describing seven incidents of
discrimination/harassment which are on-going problems:
Being charged AWOL for tardiness (not a practice),
Supervisor did not allow him to attend Christmas luncheon,
Supervisor verbally assaulted complainant, using vulgar language and
placing him in fear of his well-being, but management ignored his report
of this incident,
Denied union representation numerous times,
Complainant failed the oral procedure of the Level 8 MPE examination
four times because of the agency's failure to provide needed training,
Not selected for �DBCS with OJI� and �ECA/DBCS� training, and
Rules of Restricted Sick Leave misapplied to complainant.
By letter dated January 9, 2003, the agency notified complainant that
he had raised breach claims as well as claims constituting a separate
complaint, and that they would have to be processed separately.
The agency informed complainant that the above seven claims would be
processed as a separate complaint under Complaint No. 1-F-918-0002-03;
and that the following two claims would be processed as breach claims:
Failure to provide career guidance and/or make available proper
training that would allow complainant the qualifications necessary to
be considered for promotion; and
Management has been derelict in their responsibilities to assist you
to obtain the proper and necessary skills and training.
In its February 18, 2003 determination addressing complainant's breach
allegations, the agency found that it had fully complied with all
provisions of the settlement agreement. Regarding provision 1, the
agency indicated that the referenced meeting was conducted on November
1, 2001, and that management addressed all reports of harassment from
complainant, as stipulated in provision 2. The agency also determined
that the remaining five provisions of the settlement agreement (not
referenced herein) were also fully implemented.
Complainant now appeals this determination.
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. 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).
Provision 1
Here, based on its plain meaning, we find that provision 1 obligates the
agency to have a named agency official meet with complainant and review
certain guidelines concerning careers in maintenance, and that another
named official would assist if needed. According to the agency's
response to complainant's breach claim, this meeting was conducted
in November 2001, shortly after execution of the settlement agreement.
Complainant does not dispute that this meeting occurred as claimed by the
agency, nor does he claim that the named officials failed to review the
referenced guidelines as specified. Therefore, because this provision
does not obligate the agency to provide complainant with any training
referenced in the guideline, or any other training, we find that his
claim that the agency failed to provide him with training needed for
promotion does not demonstrate a breach of provision 1. Moreover, we
find that in framing of the claims for complainant's separate complaint
(Complaint No. 1-F-918-0002-03), the agency properly included this matter,
designated as claims 5 and 6, as set forth above.
Accordingly, we AFFIRM the agency's determination of no breach of
provision 1 based on complainant's claim that the agency failed to
provide him with adequate guidance and/or training for promotion, and
we also find that the agency properly addressed this claim as a separate
complaint in Complaint No. 1-F-918-0002-03.
Provision 2
In reviewing provision 2, we find that it does not require the agency
to do anything more than it was already legally obligated to do, i.e.,
appropriately respond to reports of harassment from workers. Therefore,
we find that provision 2 is void for lack of consideration. See Morita
v. Department of the Air Force, EEOC Request No. 05960450 (December 12,
1997) . Furthermore, because provision 2 is invalid, complainant's breach
claim regarding this provision must be treated as a new complaint.
See Bruns v. United States Postal Service, EEOC Appeal No. 01965395
(June 24,1997). In this regard, we find that the agency properly treated
this claim as a separate complaint of discrimination and harassment,
as set forth in claims 1, 2, 3, 4, and 7 of Complaint Co. 1-F-918-0002-03.
Accordingly, we AFFIRM the agency's determination of no breach of
this provision, and find that the agency properly treated the claim
as a separate complaint of discrimination and harassment in Complaint
No. 1-F-918-0002-03.
Conclusion
For the reasons set forth above, we AFFIRM the agency's determination
finding no breach of the settlement agreement at issue, and find that
the agency properly treated complainant's claims as a separate complaint
in Complaint No. 1-F-918-0002-03.
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 7, 2003
__________________
Date