01A14783_r
08-22-2002
Craig Weirauch, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Craig Weirauch v. U.S. Postal Service
01A14783
August 22, 2002
.
Craig Weirauch,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A14783
DECISION
Complainant filed an appeal with this Commission concerning a purported
breach of the January 18, 1995 settlement agreement executed by the
parties. The Commission accepts the appeal.<1> See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provides, in pertinent part, that:<2>
(1) It is agreed that the Postal Service's reason(s) for terminating
the complainant will not be divulged under any circumstance[s], to any
outside agency, employer or organization without written permission from
the complainant.
(2) ...Complainant may only seek to enforce this Settlement Agreement
pursuant to those parts of the Equal Employment Opportunity Commission
regulations which address the matter of enforcement. Further, any
disputes concerning future work assignments and any other term or
condition of complainant's employment not expressly determined by this
Settlement Agreement, are new and independent matters which may only
be addressed through the usual channels of administrative, collective
bargaining, or judicial redress and not through an action to enforce
this Settlement Agreement.
By letter to the agency dated May 23, 2001, complainant claimed that
the agency breached provision 1 above, providing notes from a 1995 union
action concerning the termination of a co-worker, which make reference
to the circumstances of his own termination. Complainant also claimed
a breach of provision 2 regarding the agency's January 19, 2001 denial
of his request for reinstatement.
In response, by correspondence dated July 11, 2001, the agency notified
complainant that his reinstatement claim must be processed as a separate
complaint, and provided him with detailed information regarding that
process. The agency then requested additional information regarding
the claimed breach of provision 1.
By letter dated July 18, 2001, complainant averred that the agency
provided information from his termination records to the union in
the course of representing a co-worker who had also been terminated.
As proof of this claim, complainant provided copies of pertinent case
notes retained by the union which reference the purported circumstances
of his own termination. Complainant then filed the instant appeal.
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 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).
The Commission determines that the agency properly informed complainant
that his breach claim regarding provision 2, concerning the agency's
denial of his request for reinstatement, must be pursued as a separate
complaint. EEOC Regulation 29 C.F.R. � 1614.504(c) requires that
subsequent claims of discrimination be pursued as separate complaints
of discrimination, and not as claims of breach. Furthermore, pursuant
to the agency's July 11, 2001 notice, we find that the record shows that
complainant contacted an EEO Counselor regarding his reinstatement claim.
Accordingly, we find no breach regarding provision 2.
Regarding provision 1, the Commission has reviewed the copies of the
case notes from the co-worker's union grievance provided by complainant.
It appears that an agency official requested termination of the co-worker
due to the alleged similarity in circumstances between complainant's
termination related conduct, and that of the co-worker. The case notes
further reflect that the union requested complainant's termination
records in an effort to defend the co-worker, on the theory that
complainant's conduct was far more grievous than the co-worker's conduct,
listing numerous �alleged� incidents speculated to have been committed
by complainant. However, these notes also state that: �It remains
to be seen whether the Postal Service will provide this information.�
Complainant also submits a copy of a �Request for Information� from the
union to the agency, dated November 4, 1995, requesting complainant's
termination records, but the record is devoid of any evidence to show that
the agency complied with this request. Therefore, because the evidence
submitted by complainant fails to demonstrate that the agency, in fact,
released his termination records, or details thereof, to the union,
we find that the agency did not breach provision 1.
Accordingly, for the reasons set forth above, we find no breach of the
settlement agreement at issue.
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 22, 2002
__________________
Date
1We note that the agency requests that the
appeal be dismissed, referencing correspondence sent to the Commission
by complainant in May 2001, arguing that complainant filed the appeal
before it had an opportunity to fully clarify the issues. However, the
record shows that complainant filed his written breach claim with the
agency on May 23, 2001, and then filed the instant appeal on July 25,
2001, upon becoming dissatisfied with what he describes as the agency's
�stalling� tactics. Accordingly, because 29 C.F.R. � 1614.504(b)
permits a complainant to file an appeal with the Commission after 35
days of filing a written breach claim with the agency, and because the
record shows that the agency did not issue a decision on the claim,
we accept the appeal.
2For ease of reference, these provisions have been renumbered herein.