Winston A. Adedeji, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 16, 2003
01A33922_r (E.E.O.C. Oct. 16, 2003)

01A33922_r

10-16-2003

Winston A. Adedeji, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Winston A. Adedeji v. United States Postal Service

01A33922

October 16, 2003

.

Winston A. Adedeji,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A33922

Agency No. 4C-080-0002-03

Hearing No. 170-A3-8337X

DECISION

Complainant filed a timely appeal with this Commission regarding whether

the agency was in compliance with the terms of a May 20, 2003 settlement

agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);

and 29 C.F.R. � 1614.405.

On May 20, 2003, the parties resolved complainant's complaint by entering

into a settlement agreement which provided, in pertinent part, that the

agency agreed to take the following action:

A meeting will take place with [Complainant], [Manager, Customer

Services], [Labor Relations Specialist], [Complainant's Representative],

[Postmaster], no later than 30 days to date. To discuss [Complainant's]

work environment and job performance. Specifics will be drawn up to

establish guidelines and expectations.

By Motion to Continue Current Complaint, Because of Breach of Partial

Settlement submitted to an EEOC Administrative Judge (AJ) dated June 18,

2003, complainant alleged that the agency was in breach of the settlement

agreement, and requested that his complaint be reinstated. Specifically,

complainant alleged that the agency failed to set up a meeting within

30 days following the signing of the agreement, in accordance with the

above referenced provision.

In her Order Denying Motion to Reinstate Complaint, the AJ denied

complainant's motion requesting his complaint be reinstated. The AJ

instructed complainant to notify the EEO Manager, in writing, of his

breach allegation. Thereafter, complainant filed an appeal with the

Commission regarding breach of the settlement agreement.

In response to complainant's appeal, the agency argues that there

was no breach of the May 20, 2003 settlement agreement. Specifically,

the agency contends that the record indicates a meeting was scheduled

for June 4, 2003. The agency further contends that on May 29, 2003,

complainant's representative informed the Labor Relations Specialist that

he was unable to convince complainant to attend the scheduled June 4,

2003 meeting. Furthermore, the agency contends that on June 2, 2003,

complainant informed the Labor Relations Specialist that he refused to

attend the June 4, 2003 meeting �because nothing would be accomplished.�

The agency states that complainant �made no attempt whatsoever to

meet and negotiate specific guidelines as stipulated in the Agreement

(emphasis in the original).�

On August 26, 2003, complainant sent a document titled �Addendum to

Complainant's Appeal to Agency's Non-Compliance� to the Commission.

Therein, complainant states that he and his representative have the

same schedule days so there would have been no problems scheduling a

date for a meeting. Complainant further states that the agency had many

opportunities to schedule a meeting but that there was �no CERTIFICATE

OF SERVICE, there was no venue, date, or anything or documentation to

show any of these! (emphasis in the original)�

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).

In the instant case, we note that the agency, on appeal, asserts

that although a meeting was scheduled for June 4, 2003, complainant,

purportedly informed an agency official on or about June 2, 2003, that

he would not attend the June 4, 2003 meeting because �nothing would be

accomplished.� We further note that complainant, in contrast, asserts

that scheduling a meeting would not have been a problem, but that there

is nothing documented by the agency indicating that a meeting on June 4,

2003, had ever been scheduled. We find that it appears undisputed that

no meeting occurred on June 4, 2003. In the interest of resolving this

matter, we determine it appropriate to REMAND this matter to the agency

for implementation of the above referenced provision of the settlement

agreement, in accordance with the ORDER below.

ORDER

The agency is ORDERED to take the following action:

Within thirty (30) calender days of the date that this decision becomes

final, the agency is ORDERED to schedule a meeting with complainant; the

named Manager, Customer Services; the named Labor Relations Specialist;

complainant's representative, and the Postmaster to discuss complainant's

work environment and job performance; and that any specifics would be

drawn up to establish guidelines and expectations as agreed.

A copy of all pertinent documentation verifying compliance with the

May 20, 2003 settlement agreement, including evidence that complainant

has been notified of the date, time, and place for the subject meeting,

must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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)

(1994 & Supp. IV 1999). 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 (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 (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

October 16, 2003

__________________

Date