01994753
11-28-2000
Timothy R. Whitworth, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Timothy R. Whitworth v. United States Postal Service
01994753
November 28, 2000
.
Timothy R. Whitworth,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01994753
Agency No. 1-H-351-0037-98
DECISION
Complainant filed a timely appeal with this Commission from the agency's
March 4, 1999 final decision, finding no breach of the the July 30, 1998
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, that:
(1) Complainant . . . agree[s] to withdraw and not pursue EEO Complaint
No. 1-H-351-0037-98 in light of the accepted apology received from
[his supervisor].
(2) Complainant also agree[s] to provide adequate up-to-date medical
documentation in order to request light duty restriction[s] and
accommodations, effective immediately.
No reprisal action will be taken against complainant.
In his claim of breach, complainant alleged that his supervisor took
no action on his light-duty requests despite his submission of updated
medical information. He also noted that his supervisor failed to
complete his Office of Workers' Compensation Program (OWCP) form CA-2.
Further, complainant asserted that a second office wrongfully restricted
his light-duty to ninety days. He noted that the agency only allowed
him to work six hours a day, but required him to take two hours of sick
leave for the time he was not allowed to work. Complainant contended
that all of these actions violated the �no reprisal� clause of the
settlement agreement.
In its March 4, 1999 decision, the agency concluded that it complied
with the terms of the settlement agreement. Specifically, it noted that
complainant was never denied an opportunity to submit updated information
for his request for light-duty.
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. 29 C.F.R. � 1614.504(a). A settlement agreement
is a contract between the employee and the agency for which ordinary
rules of contract construction apply. See Herrington v. Department of
Defense, EEOC Request No. 05960032 (December 9, 1996). The parties'
intent as expressed in the contract, not some unexpressed intention,
controls the construction of a contract. Eggleston v. Department
of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990).
When ascertaining the intent of the parties in a settlement agreement,
the Commission generally relies on the plain meaning rule. See Hyon
v. United States Postal Service, EEOC Request No. 05910787 (December 2,
1991). This rule prohibits the use of extrinsic evidence of any nature,
so long as the writing appears to be plain and unambiguous on its face.
See Montgomery Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377
(5th Cir. 1984).
In the instant case, the Commission finds that the agreement only provided
complainant with a right to provide updated medical documentation to
support his request for light-duty. It did not require the agency
to place complainant in light duty, nor to process his request in a
certain manner. To find otherwise would require the Commission to
imply an intention not expressed in the agreement itself. Therefore,
the supervisor's failure to process his request for light duty and the
agency's failure to provide the duty requested does not constitute breach
of the agreement.
Complainant also claims breach because of alleged reprisal taken against
him. The Commission has held that a complaint alleging reprisal or
further discrimination in violation of a settlement agreement's "no
reprisal" clause, must be processed as separate complaints and not
as a breach of settlement. Bindal v. Department of Veterans Affairs,
EEOC Request No. 05900225 (August 9, 1990); 29 C.F.R. � 1614.504(c).
Therefore, the Commission finds that the agency's subsequent acts,
allegedly taken in reprisal against complainant, do not constitute breach
of the settlement agreement.
Complainant is advised that if he wishes to pursue these reprisal claims
as a new complaint, he shall initiate contact with an EEO Counselor within
15 days after he receives this decision. The Commission advises the
agency that if complainant seeks EEO counseling regarding the new claims
within the above 15-day period, the date complainant filed the appeal
statement in which he raised these claims with the agency shall be deemed
to be the date of the initial EEO contact, unless he previously contacted
a counselor regarding these matters, in which case the earlier date would
serve as the EEO Counselor contact date. Cf. Qatsha v. Department of
the Navy, EEOC Request No. 05970201 (January 16, 1998).
CONCLUSION
Accordingly, the agency's finding on no breach is AFFIRMED.
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 (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
November 28, 2000
__________________
Date