01A31633_r
08-14-2003
William L. Nash, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
William L. Nash v. United States Postal Service
01A31633
August 14, 2003
.
William L. Nash,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31633
Agency Nos. 4E-800-0270-00, 4E-800-0039-00
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated December 18, 2002, finding that it was in
compliance with the terms of the August 15, 2001 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
(5) It is understood by the undersigned that this agreement is in full
and complete settlement of all outstanding administrative complaints,
grievances, or other appeals filed by the Complainant or filed in his
behalf, relating to allegations of discrimination in that from October
1, 1999 and continuing, Complainant has been denied changes of schedule,
harassed, followed, yelled at, falsely accused, threatened, called names,
intimidated and issued 3 Letters of Warning. The Complainant agrees to
and hereby voluntarily withdraws any and all outstanding administrative
complaints and/or appeals, and to request that any grievances or other
complaints filed in his behalf, be withdrawn. Further, it is understood,
that in withdrawing all appeals and/or complaints, the Complainant waives
rights to an oral hearing or further appeal on the matters raised and or
which are currently live. It is also understood that this settlement
is contingent upon all complaints/grievances or other appeals, being
withdrawn.
(10) It is agreed the Agency shall recredit Complainant with all annual
leave used during the period from October 12, 1999, through October
24, 1999. Further, the Agency shall pay Complainant pecuniary damages
in the amount of $175.00. The parties also agree that the Agency shall
pay Complainant a lump sum of $4,000.00 as compensatory damages for
emotional pain and suffering.
By letter to the agency dated September 3, 2002, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that agency officials violated provision (5) by continuing to
follow him, harass him, call him names, say derogatory and inflammatory
things to him and about him to others, and complain about complainant
needing extra assistance on his route. Complainant stated that he
received 4 investigative interviews within 2 weeks, received a Letter
of Warning and may receive a second warning. Complainant described
the work environment as hostile and intimidating and that he believes
agency officials intend to hurt his reputation as a Christian and worker
for the postal service. In a follow-up letter dated September 4, 2002,
complainant alleged, among other matters, that the agency falsified his
mail count on August 31, 2002.
In its December 18, 2002 decision, the agency concluded that the agency
officials who signed the settlement agreement of August 15, 2001, were
not the same officials named in complainant's letter alleging breach
of the settlement agreement. The agency found no connection between
the settlement agreement and complainant's allegations. With respect
to compliance, the agency found that the three Letters of Warning
described in provision (5) of the settlement agreement had been removed
from complainant's Official Personnel Folder. Accordingly, the agency
found that it had fully implemented the settlement agreement and that
no breach had occurred.
On appeal, complainant states that he first described his breach
allegations to the agency EEO official (E1) who helped resolve his
former EEO complaints, from which the settlement agreement resulted.
Complainant states that he was referred to another agency official (E2)
who was in charge of handling charges of breach. Complainant relayed
his conversation with E1 to E2, who advised complainant to file a new
EEO complaint. Ultimately, complainant explains that he filed the
instant appeal because he felt that EEO should have done something.
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).
EEOC Regulation 29 C.F.R. � 1614.504 provides that if a complainant
believes that the agency has failed to comply with the terms of a
settlement agreement, he may request that the terms of the agreement
be specifically implemented, or, alternatively, that the complaint be
reinstated for further processing. However, the Commission has held
that claims that allege reprisal or further discrimination are to be
processed as separate complaints and not as a breach of settlement.
In the instant case, we find that the agency correctly determined that no
breach of the settlement agreement occurred. We observe that provision
(5) describes complainant's obligation to withdraw the EEO claims and
complaints described, in exchange for the benefits conferred by the
remaining provisions of the agreement including the lump sum and restored
leave specified in provision (10).
Complainant appears to be alleging subsequent acts of discrimination
in his letters of September 3 and 4, 2002. Such matters are more
appropriately addressed as separate complaints of discrimination.
See 29 C.F.R. � 1614.504(c). If complainant wishes to pursue such
claims as a separate complaint, then he should contact an EEO Counselor
within 15-days of the date this decision becomes final. The Commission
advises the agency that if complainant seeks EEO counseling regarding the
subsequent claims within the above 15-day period, the date complainant
contacted the agency's EEO officials regarding these matters will be
deemed the EEO Counselor contact date.
We therefore AFFIRM the agency's determination that no breach of the
settlement agreement occurred.
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 14, 2003
__________________
Date