01A11428_r
07-18-2002
Michael A. Alvarez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael A. Alvarez v. United States Postal Service
01A11428
July 18, 2002
.
Michael A. Alvarez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11428
Agency No. 4-J-600-0236-98
DECISION
Complainant timely appealed the agency's decision that denied his claim
that the settlement agreement entered into between the parties had
been breached.
The record reveals that on June 28, 1999, complainant and the
agency entered into a settlement agreement of the instant complaint.
The settlement agreement provided, in pertinent part, as follows:
The Complainant shall be compensated for any/all straight time pay lost
during the period from 2/27/98 through 10/27/98.
Any and all discipline issued to the Complainant, with the exception of
the subject removal dated 1/26/98, is hereby rescinded and expunged from
the Complainant's record.
The Complainant agrees not to apply for reinstatement within the Northern
Illinois District of the [agency], nor shall he request reinstatement in
the Northern Illinois District, as a term and/or condition of a requested
remedy in any pending or future Appeals, Complaints, or grievances.
It is agreed that the [agency] will pay reasonable attorney's fees.
The Complainant's representative shall submit all itemized bills within
twenty (20) days from the signing of this agreement.
The parties agree to keep the terms and conditions of this agreement
confidential.
By letter dated May 27, 2000, the agency received complainant's claim of
breach. According to complainant, the agency breached the confidentiality
provision when it disclosed the settlement agreement to the arbitrator
presiding over his grievance. Complainant stated that the agency also
breached the agreement when it influenced the arbitrator to consider
prior disciplinary actions which were supposed to have been rescinded and
expunged. Complainant notes that the arbitrator upheld his removal and
cited prior disciplinary action referenced in the settlement agreement.
Complainant also claims that the agency has not paid attorney's fees.
In an agency decision dated November 22, 2000, the agency determined
that it had not breached the settlement agreement. The agency stated
that complainant has not submitted the form titled employee statement
to recover back pay despite the fact that the agency twice mailed the
form to complainant. With regard to the issue of complainant's prior
discipline, the agency stated that all discipline except complainant's
removal dated January 26, 1998, was rescinded and expunged from his
record. The agency determined that complainant's attorney was paid
attorney's fees in the amount of $5,300.00 by check dated August 31, 2000.
As for the confidentiality provision of the settlement agreement, the
agency determined that complainant did not fulfill his obligation to
refrain from pursuing the grievance arbitration procedure with regard
to his removal. The agency stated that the settlement agreement was
presented to the arbitrator for the purpose of supporting management's
position on arbitrability. The agency further stated that it would not
have expunged complainant's prior discipline had he not agreed to forego
seeking reinstatement in the Northern Illinois District. Thereafter,
complainant filed the instant 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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
The Commission has consistently 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, 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, 381 (5th Cir. 1984).
With regard to the merits of complainant's allegation of breach, we find
that complainant has not established that a breach occurred. We find
as to the confidentiality provision of the settlement agreement that
the agency did not breach the agreement by informing the arbitrator of
the settlement. The agency cited the agreement only for the purpose
of contesting arbitrability. As for the provision stating that
complainant shall be compensated for any/all straight time pay lost
during the period of February 27, 1998 - October 27, 1998, we find
that complainant has not refuted the agency's position that he failed
to submit the appropriate form for the processing of a backpay request.
With regard to the payment of attorney's fees, we observe that the record
contains a copy of a $5,300.00 check dated August 31, 2000, that was made
payable to complainant's attorney. We find no support for complainant's
claim that the agency breached the settlement. Accordingly, the agency's
decision that it did not breach the settlement agreement was proper and
is AFFIRMED.
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 (S0900)
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 (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 18, 2002
__________________
Date