0120061394
05-22-2008
Tom Martin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Tom Martin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200613941
Agency Nos. 4E-590-1030-94
4E-590-1025-94, and 4E-590-1013-94
DECISION
Complainant filed a timely appeal with this Commission regarding the
agency's compliance with the terms of the August 25, 1995 settlement
agreement into which the parties entered.
The settlement agreement provided, in pertinent part, that:
(1) The parties agree that it is in the best interests of
the effective functioning of the administrative Equal Employment
Opportunity procedures to keep confidential the terms and conditions of
this Settlement Agreement The parties agree, as a term and condition
of settlement, to keep confidential the information herein and not
to disclose said information to any third party other than through
legal counsel or as authorized within or by this Settlement Agreement.
This Settlement Agreement will be kept confidential and the terms will
not be disclosed by either party, except to the extent required by this
Settlement Agreement and to those authorized Postal Service officials
needed or responsible for honoring and implementing the terms of this
Settlement Agreement.
(2) This Settlement Agreement is entered into in the interests of
all parties for good judicial economy and to enable the parties to move
on with their Postal careers.
(3) It is agreed and understood by the undersigned that this
Settlement Agreement, and the resolution of the matters that this
Settlement Agreement encompasses, is not precedent setting and may not
be cited as precedent in any other proceeding or in any other forum.
However, this Settlement Agreement may be cited to prove its existence and
to establish that the matters that this Settlement Agreement encompasses
have been settled.
. . . .
(6) . . . (g) Any other documents related to any of the above
referenced EEOC Complaints or related to any issue contained therein,
that are negative or reflect unfavorably upon the Complainant, including
the Letter of Decision dated July 11, 1994, will be withdrawn from the
Complainant's Official Personnel File (OPF) and be destroyed.
The settlement also provided attorney's fees, the withdrawal of a Letter
of Warning and Performance Improvement Plan, and the restoration of
1,000 hours of sick leave to complainant.
By letter to the agency dated November 17, 2005, complainant alleged
that the agency was in breach of the settlement agreement, and requested
that the agency reinstate the settled complaint from the point where
processing previously ceased. Specifically, complainant alleged that
during a deposition2 in 2005, an agency attorney questioned complainant
about the nature of his settled EEO complaints, the settlement agreement,
and the personnel actions that led to his EEO complaints in 1994.
Complainant claims that the agency attorney was clearly well aware of
complainant's prior EEO complaints and thus complainant alleges that the
subject documents were not sealed and destroyed as agreed in the 1995
settlement agreement. When the agency failed to respond in writing to
complainant's allegations, complainant filed the instant appeal.3
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 the record is inadequate to determine whether
the agency has breached the settlement agreement of August 25, 1995.
The agency argues that it was not disclosing the settlement agreement
to a third party and that the settlement agreement did not preclude
the agency's attorney from questioning complainant about his prior
EEO activity. The record does not contain a copy of the deposition in
which complainant claims the agency's representative displays knowledge
of documents that should have been sealed or destroyed, that were the
subject of the settlement agreement. Without the deposition, we are
unable to clearly discern the circumstances surrounding the alleged
disclosure of the settlement agreement. Additionally, nothing in the
record confirms that the agency did or did not take the steps necessary
to remove the subject documents from complainant's official personnel
file as agreed in paragraph (6) of the agreement.
Accordingly, the agency's decision finding no breach of the August 25,
1995 settlement is VACATED and we REMAND the matter to the agency for a
supplemental investigation to determine whether the agency fulfilled its
obligation under the terms of the August 25, 1995 settlement agreement.
ORDER
The agency shall conduct a supplemental investigation, which shall
include a determination as to whether the documents described in
provision 6 of the Settlement Agreement of August 25, 1995, have been
removed from complainant's official personnel file and either sealed or
destroyed as directed therein. Further the agency shall supplement the
record with a copy of complainant's deposition dated October 26, 2005,
together with any referenced exhibits. Thereafter, but no later than
30 days after the date this decision becomes final, the agency shall
issue a final decision on the issue of whether or not it breached the
settlement agreement of August 25, 1995, regarding provisions 1, 3, and 6.
A copy of the final decision must be submitted to the Compliance Officer,
as referenced herein.
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 (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 (Z0408)
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
May 22, 2008
__________________
Date
1 Due to a new data system, the Commission has redesignated the instant
case with the above- referenced appeal number.
2 The deposition occurred as part of the discovery process incident
to another, unrelated EEO complaint, EEOC Hearing No. 340-2005-00620X,
that complainant filed in 2005, based on reprisal for prior protected
activity.
3 By letter dated April 25, 2008, the agency issued a finding that no
breach of the settlement agreement occurred.
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0120061394
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120061394