0120082970
12-03-2008
Anthony Cirillo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anthony Cirillo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082970
Agency No. 1C-191-0013-07
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated May 29, 2008, finding that it was in
compliance with the terms of the March 22, 2007, settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
Mr. Crillo's suspension shall be reduced to seven days with no loss in
pay. This seven day suspension shall be expunged from the grievance/USPS
record one year from the date of the incident, i.e., 05 Jan 2008.
In exchange, complainant agreed to withdraw two grievances. Also,
the settlement was made under EEO agency case number 1C-191-0013-07,
and it presumably closed that case. The referenced suspension charged
complainant with various violations stemming from his drinking beer
in a tavern while on the clock on January 5, 2007. By letter to the
agency dated April 24, 2008, complainant alleged that the agency was
in breach of the settlement agreement. Specifically, in reference to a
March 6, 2008, notice of removal against him, complainant alleged that
the agency referred to the January 5, 2007, incident. The notice of
removal terminated complainant stemming from his allegedly being in the
same tavern while on the clock. The notice stated that after complainant
did not respond to pages, a supervisor decided to check the tavern based
on a prior incident of complainant being there while on the clock.
The May 29, 2008, FAD concluded that the agency did not breach the
settlement agreement. It found that the suspension was expunged, as
promised, and that the suspension was not cited as a past element of
his disciplinary record in the notice of removal.
On appeal, complainant argues that the reference to the January 5, 2007,
incident in the notice of removal violated the settlement agreement.
He further writes on appeal that in a subsequent unemployment hearing,
the Supervisor of Maintenance Operations testified that complainant
twice previously failed to perform work while on the clock. He submits
a May 23, 2008, e-mail by the agency Manager of Maintenance Operations
to the Pennsylvania Department of Labor & Industry, which administers
unemployment compensation appeals. The e-mail defended the removal on
the grounds that this was the third time complainant was caught in a bar
while missing from his work facility, and he was previously disciplined
for this.
Complainant also argues on appeal that the agency referred to the
prior suspension in its June 2, 2008, Step II Denial of his grievance
challenging the removal. He submits a copy of the denial. The Step II
Denial states that while prior discipline was not relied upon in issuing
the removal, the union raised the "past practice" argument, opening the
matter. It went on to state that complainant has been disciplined twice
for the same activity, and went on to cite two grievance case numbers.
Complainant states that these case numbers were the grievances challenging
the discipline stemming from the January 5, 2007, incident.
In opposition to complainant's appeal, the agency writes that complainant
is collaterally attacking the grievance process which does not pertain
or relate to the expunged suspension. The agency does not deny that
Manager of Maintenance Operations testified that complainant failed twice
previously to perform work while on the clock, nor does it address the
above e-mail.
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 agree with the FAD that the settlement agreement
was not breached by any language in the notice of removal. The notice of
removal did not rely on the expunged suspension as prior discipline as
a past element of his disciplinary record, rather, it simply explained
that the supervisor looked for complainant in the tavern based on his
prior behavior.
Because the agency received a copy of complainant's appeal submissions
and responded thereto, we will rule on whether the subsequent actions
raised by complainant breached the settlement agreement, even though the
record does not show that complainant raised the matter with the EEO
Director pursuant to 29 C.F.R. � 1614.504(a). The information in the
record is insufficient to make a determination on whether the language in
the agency's Step II Denial referring to the expunged suspension violated
the settlement agreement. This is so because it was in response to Union
argument regarding "past practice," something which is not explained.
The denial states that previous elements of complainant's disciplinary
record were not relied on in issuing the removal.
However, we are persuaded that the agency breached the settlement
agreement by referencing the January 5, 2007, incident in challenging
complainant's claim for unemployment compensation. Specifically,
it referenced the incident by testifying at the unemployment hearing
that complainant twice previously failed to perform work while on the
clock, and submitting an e-mail that this was the third time complainant
was caught in a bar while missing from his work facility, and he was
previously disciplined for this. The agency used the incident for which
complainant was suspended to challenge complainant's unemployment claim.
This breached the settlement agreement because the agency promised to
expunge the suspension by this time. Expunging discipline includes not
using it to support a sanction against complainant.
At this point we see no way that the agency can cure the breach.
Accordingly, we are directing the agency to reinstate complainant's
EEO claim closed by the settlement agreement from the point processing
ceased.
ORDER
The agency is ordered to process the EEO claim(s) closed by the March
22, 2007, settlement agreement from the point processing ceased in
accordance with 29 C.F.R. Part 1614.1 The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final.
A copy of the agency's letter of acknowledgment to complainant must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M0408)
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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 3, 2008
__________________
Date
1 We do not address the grievances closed by the settlement agreement.
We have no jurisdiction over the grievance process.
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0120082970
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120082970