01981420
03-26-1999
Leo D. Cain, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Leo D. Cain v. United States Postal Service
01981420
March 26, 1999
Leo D. Cain, ) Appeal No. 01981420
Appellant, ) Agency Nos. 4H-335-1165-96
) 4H-335-1057-96
v. ) 1H-337-1023-95
) 4H-335-1117-95
William J. Henderson, ) 4H-335-1123-95
Postmaster General, ) 3W-1741-92
United States Postal Service, ) 4H-335-2692-92
Agency. ) 4H-335-1155-94
______________________________)
DECISION
On December 2, 1997, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated November 7, 1997, finding that
the agency was in compliance with the terms of the six (6) settlement
agreements into which the parties entered. See 29 C.F.R. ��1614.402,
.504(b); EEOC Order No. 960, as amended.
The settlement agreements provided, in pertinent part, that:
[Appellant] will be treated the same as all other employees and will
not be retaliated against for this action. (Settlement agreements dated
August 4, 1997, and April 30, 1997)
[M]anagement will continue to treat [appellant] in a fair and equitable
manner, consistent with the National Agreement and all associated
handbooks and manuals. (Settlement agreements dated August 29, 1996,
and June 6, 1994)
[Appellant] will be treated fairly and equitably as all other employees.
(Settlement agreement dated April 2, 1996)
[Appellant] will be treated fairly and equitably. (Settlement agreement
dated January 19, 1995)
By letter to the agency dated September 30, 1997, appellant alleged
that he was discriminated against when he was denied a bid assignment
he sought. Additionally, appellant alleged that this denial constituted
a breach of the settlement agreements, in that the agency failed to treat
him in a fair and equitable manner. Appellant requested, as remedial
relief, $300,000.00.
In its November 7, 1997 FAD, the agency noted that appellant's allegation
concerning his bid assignment was unrelated to the prior complaints he
filed. Additionally, the agency determined that it was in compliance with
all of the prior settlement agreements into which the parties entered.
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).
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 a complaint which alleges reprisal or further discrimination in
violation of a settlement agreement's "no reprisal" clause, is to 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).
In the instant case, we find that the provisions cited above are analogous
to "no reprisal clauses" since appellant did not receive anything more
than that to which he was already entitled, i.e., to be treated fairly.
Consequently, an allegation of breach of a "fair treatment" clause
would be treated the same as an alleged violation of a "no reprisal
clause;" these allegations should be processed as separate complaints
of discrimination rather than as a breach of settlement. Based on
the present record, it appears that appellant did seek EEO counseling
on his allegation regarding the denial of a bid and he was issued a
notice of right to file a formal complaint (Agency No. 4-H-335-0021-98).
While it is unclear whether appellant filed a formal complaint on the
denial of bid allegation, appellant is hereby advised that if he wishes
to further pursue this issue, a new complaint would be the only vehicle
for use through the EEO process.
Based on the foregoing, the agency's decision denying appellant's
allegations of breach is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
March 26, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations