01991003_r
08-28-2002
Frederick M. Whitley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Frederick M. Whitley v. United States Postal Service
01991003
August 28, 2002
.
Frederick M. Whitley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01991003
Agency Nos. 4D-1902-93
4D-1903-93
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated November 2, 1998, finding that it was in
compliance with the terms of an April 16, 1993 settlement agreement.
The settlement agreement provided, in pertinent part, that:
�I be treated with dignity and respect as a window clerk, and not be
singled out and embarrassed in front of my peers. If there is a problem
with the performance of my duties, the problem will be addressed in a
respectful and professional manner.�
By letter dated September 21, 1998 to the agency, complainant alleged
that the agency breached the settlement agreement.
In its November 2, 1998 decision, the agency concluded that it did not
breach the settlement agreement. Specifically, the agency determined
that complainant failed to indicate the date the noncompliance occurred.
Complainant raises no new contentions on 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 record reveals that in a November 8, 1994 FAD, the agency
previously found no breach of the April 16, 1993 settlement agreement.
Complainant filed an appeal from the November 8, 1994 FAD. On appeal,
the Commission vacated and remanded the agency's decision after finding
that the April 16, 1993 settlement agreement provided complainant with
nothing more than that to which he was entitled as an employee and he
received no consideration for his agreement to withdraw his complaints.
The Commission further found that a separate settlement agreement, dated
December 8, 1993, was also of no force and effect. On remand, the agency
was specifically ordered to reinstate complainant's complaints from
the point that processing ceased in April 1993 (Agency Nos. 4D-1902-93
and 4D-1903-93) and in December 1993 (Agency Nos. 4D-270-2704-93,
4D-270-2705-93, and 4D-270-2706-93). Whitley v. United States
Postal Service, EEOC Appeal No. 01950945 (June 2, 1995); request for
reconsideration denied, EEOC Appeal No. 05950773 (November 22, 1996).
In the instant case, the Commission finds it has already determined that
the settlement agreement dated April 16, 1993 lacked consideration,
and ordered that the underlying complaints be reinstated from the point
where processing ceased. The Commission's determination on this matter
will not therefore be revisited. The agency's finding of no settlement
breach is therefore REVERSED and the purportedly settled matter is
REMANDED to the agency for further processing in accordance with this
decision and applicable regulations. The Commission will reiterate the
Order provided in its decision of June 2, 1995, that was again contained
in the Commission's November 22, 1996 denial of the agency's request
for reconsideration
ORDER
The agency, within thirty (30) calendar days of the date this decision
becomes final, is ORDERED to resume the processing of complainant's
complaints from the point that processing ceased in April 1993
(Agency Nos. 4D-1902-93 and 4D-1903-03) and in December 1993 (Agency
Nos. 4D-270-2704-93, 4D-270-2705-93, and 4D-270-2706-93). The agency,
within thirty (30) calendar days of the date this decision becomes final,
shall notify the complainant that it has resumed processing her underlying
EEO matter.
A copy of the agency's letter informing complainant of the resumption
of processing of the settled EEO matter 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
August 28, 2002
__________________
Date