01a22433_r
07-26-2002
Ascencion Garcia, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ascencion Garcia v. United States Postal Service
01A22433
July 26, 2002
.
Ascencion Garcia,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22433
Agency No. 4-G-784-0027-00
DECISION
Complainant timely appealed the agency's decision not to reinstate
his complaint of unlawful employment discrimination that the parties
had settled. See 29 C.F.R. � 1614.504. The record indicates that
on September 20, 2000, the parties resolved complainant's complaint
by entering into a settlement agreement, which provided, in pertinent
part, that:
The Postal Service agrees to compensate [complainant] the sum of $1,920.00
to settle this complaint. The Postal Service and all parties agree
that prior to any disciplinary action being taken against counselee,
a meeting will be convened with counselee, his immediate supervisor,
the tour MDO and a union representative to attempt to resolve the issue
raised by the proposed disciplinary action.
On December 2, 2001, complainant alleged that he was subjected to
disciplinary actions after the settlement agreement was entered into.
Specifically, complainant indicated that management did not convene a
meeting between himself, his immediate supervisor, the tour MDO, and
his union representative, as described in the settlement agreement on
or about December 5, 10, and 14, 2001.
The agency stated that it did not breach the settlement agreement.
Specifically, the agency indicated that after the settlement agreement
was entered into, complainant was issued the disciplinary letters on
December 11, 2001, December 14, 2001, and January 3, 2002. The agency
stated that before each of these disciplinary actions was taken, a
pre-disciplinary interview was conducted.
EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant
believes that the agency failed to comply with the terms of a settlement
agreement, the complainant should notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of when the complainant knew or should
have known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point processing ceased.
The agency shall resolve the matter and respond to the complainant,
in writing. If the agency has not responded to the complainant, in
writing, or if the complainant is not satisfied with the agency's attempt
to resolve the matter, the complainant may appeal to the Commission for
a determination as to whether the agency has complied with the terms of
the settlement agreement or final decision.
The Commission has held that settlement agreements are contracts between
the complainant and the agency and it is the intent of the parties
as expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule
when interpreting settlement agreements. The Commission's policy in
this regard is based on the premise that the face of the agreement best
reflects the understanding of the parties.
The record indicates that complainant was issued two letters of warning
on December 11 and 14, 2001, and a 7-day suspension on January 3, 2002.
The settlement agreement specifically provides that a meeting will be
convened with complainant, his immediate supervisor, the tour MDO, and a
union representative prior to the agency's issuance of any disciplinary
action. Although the record indicates that pre-disciplinary and
initial investigative interviews were conducted prior to the issuance
of these disciplinary actions, the agency did not convene a meeting
with complainant, his immediate supervisor, the tour MDO, and a union
representative in accordance with the settlement agreement. The agency
failed to submit evidence showing that the Tour MDO was present at any
meeting prior to the issuance of any disciplinary action. Thus, the
Commission finds that the agency breached the settlement agreement.
Since complainant's disciplinary letters were issued in a violation
of the settlement agreement, the Commission finds that the agency must
rescind and expunge them from complainant's personnel file and any related
agency records. The Commission notes, however, that the agency, is not
prevented under the settlement agreement from reissuing any disciplinary
action in the future as long as the meeting required in the settlement
agreement is convened.
Accordingly, the agency's decision finding no breach of the settlement
agreement is REVERSED and the case is REMANDED to the agency to take
appropriate actions in accordance with the Order set forth herein.
ORDER
The agency, within thirty (30) calendar days of the date this decision
becomes final, shall issue a letter to complainant indicating that it has
rescinded/expunged his letters of warning of December 11 and 14, 2001,
and his 7-day suspension of January 3, 2002. The agency shall provide
a copy of the letter(s) of rescission/expungement to the Compliance
Officer as referenced herein.
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
July 26, 2002
__________________
Date