0120083760
12-02-2009
James A. Cooper, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
James A. Cooper,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120083760
Agency No. 1E-801-0003-08
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated August 11, 2008, finding that it
was in compliance with the terms of the October 30, 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:
(1) [Complainant] will provide documentation from [a named agency
employee, E1] that shows that [a named agency official] directed
[complainant and E1] not to take corrective action on employees for
clocking violations. Once the documentation is supplied the warning on
[complainant and E1] will be removed.
By letter to the agency dated June 24, 2008, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant stated that the letter of warning has not been removed from
his official personnel file (OPF) and asserted that as of June 27, 2008,
the letter of warning was still in his OPF.
In its August 11, 2008 FAD, the agency concluded that it was not in breach
of the agreement. Specifically, the agency stated that the letter of
warning had been removed.
On appeal, complainant asserts that the agency's final decision finding
no breach of the settlement agreement is improper and requests that his
underlying complaint be reinstated. In a letter to the Commission,
complainant asserts that an agency report issued on May 2, 2009
reflects that information pertaining to the letter of warning still
exists. Complainant also asserts that he has been subjected to retaliation
subsequent to entering into the settlement agreement.
In response, the agency requests that we affirm its final decision finding
no breach of the settlement agreement. Specifically, the agency states
that "[r]ecord evidence reflects that the letter of warning was removed
on July 15, 2008, curing the breach."
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 find that the agency is in breach of the
settlement agreement. We acknowledge that the record contains an e-mail
from an agency official dated July 15, 2008, providing that the letter
of warning has been removed from complainant's official personnel file
as of July 15, 2008. However, complainant, on appeal, submits a copy of
a printout of an agency "Admin Action Report" for complainant dated May
2, 2009. The printout references the letter of warning at issue.1 We
find that a reasonable interpretation of provision 1 of the settlement
agreement requires removal of the letter of warning, as well as any
references to the letter of warning. Based on the May 2, 2009 Admin
Action Report, we find that the agency is in breach of the settlement
agreement.
Regarding complainant's assertion that he was subjected to retaliation,
claims that a subsequent act of discrimination violated a settlement
agreement shall be processed as a separate complaint and not as a breach
claim. See 29 C.F.R. � 1614.504(c). To the extent complainant wishes
to pursue this matter as a separate EEO complaint, he should contact an
EEO Counselor.
Accordingly, we REVERSE the agency's final decision finding no breach
of the settlement agreement and we REMAND this matter to the agency in
accordance with the Order below.2
ORDER
Within thirty (30) calendar days from the date this decision becomes
final, the agency is ORDERED to take the following remedial action:
To the extent it has not already done so, the agency shall comply with
provision 1 of the settlement agreement, that is, the agency shall remove
the letter of warning at issue, as well as remove any references to the
letter of warning.
The agency is further directed to submit a report of compliance as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (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 2, 2009
Date
1 The agency does not address the May 2, 2009 report.
2 While complainant requests that we reinstate his underlying complaint,
we find that in the instant matter implementing the terms of the
settlement agreement is more appropriate.
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0120083760
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083760