01992852
05-31-2000
Calvin D. Gordon, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Calvin D. Gordon, )
Complainant, )
)
v. ) Appeal No. 01992852
) Agency No. 4-G-000-2616-93
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On October 26, 1998, complainant alleged that the agency breached the
terms of a January 30, 1998 settlement agreement. Complainant appealed
his claim of breach to this Commission on February 18, 1999.<1> A
complainant may appeal claims of breach to this Commission thirty-five
days after notifying the agency of the breach. See 64 Fed. Reg. 37,644,
37,659, 37,660 (1999)(to be codified and hereinafter referred to as 29
C.F.R. � 1614.504(b)). Therefore, the appeal is timely, and is accepted
for review.
The settlement agreement provided, in pertinent part, that:
In reference to the transfer request:
[An agency official] will call the following locations, [complainant] and
[complainant's union representative] will be present, all in California:
Santa Rosa
Santa Cruz
San Francisco Area
Eureka
San Luis Obispo
. . .
It is understood that if a transfer is not granted it is subject to the
grievance/arbitration procedure.
(II) [Complainant's] OPF [Official Personnel File], Station File, and
all other files will be purged of all material that is in violation of
Postal Regulations.
(III) A lump sum payment will be paid to [complainant] in an amount
equal to 40 hours (paid at the straight time rate). This amount will
be paid as soon as possible, but no later than 60 days from the date
of signing the agreement.
Complainant alleged that the agency only called one of the five facilities
to inquire about transfers, failed to purge medical information from
his personnel file, and failed to pay the lump sum within sixty days of
signing the agreement. Complainant explained that the agency official
only called the Santa Cruz office on his behalf. He also asserted that
an official in the Santa Cruz office informed him that the transfer
would not be granted because medical documents in his file indicated
that he was accident prone.<2>
The agency responded by letter dated February 23, 1999, denying
any breach of the settlement agreement. According to the agency,
regulations prohibit restricted medical records from being maintained
in an employee's OPF. The agency explained that it kept three types of
medical information: (1) restricted medical records; (2) administrative
medical records; and (3) Office of Worker's Compensation Program (OWCP)
- related medical records. The agency argued that the documents in
question did not contain any medical information, and also were �purged.�
The agency admits that it failed to tender the lump-sum payment within
sixty days, but asserts that it paid the amount in the second pay period
of 1999. The agency also concedes that section (I) of the agreement
has not been fully implemented, but contends that it was not breached,
because section (I) requires the cooperation and presence of complainant
and the union.
The record does not contain a copy of the allegedly offensive medical
records. The record also contains no statement, affidavit, document,
or other proof that the records did not contain restricted medical
information and was not in complainant's personnel files. The record
also is silent regarding attempts to meet and contact other facilities
concerning transfer.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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 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).
Without a copy of the records in question, any statements concerning
the records, or any other information pertaining to whether documents
were left in complainant's file, the Commission cannot determine whether
the agreement was breached. Concerning the payment of the lump-sum, the
Commission notes that the agency has now complied, albeit not within the
time frame specified in the agreement, and complainant is not represented
by an attorney.
CONCLUSION
Accordingly, the agency's decision is VACATED and this case is REMANDED
for a supplemental investigation.
ORDER
The agency is ORDERED to perform the following supplemental investigation:
Obtain a copy of the �medical documents� in question and include them
with the present case file.
Obtain a statement or affidavit from the official(s) at the Santa Cruz
facility who denied complainant's request for transfer. This statement
or affidavit must address what files from complainant were reviewed and
what medical documentation was found in those files.
Obtain a copy of any relevant regulations and official, published
interpretations concerning what types of documents may not be
included in employee files. This information should include documents
differentiating/defining �restricted medical records� vs. �administrative
medical records.�
Obtain a statement or affidavit from the official responsible for calling
various facilities pursuant to section (I) of the settlement agreement.
This statement or affidavit must address whether the official attempted
to arrange meetings with complainant and the union in order to contact
the facilities as contemplated by the agreement. The agency also should
provide any letters, e-mails, or other documentary evidence pertaining
to these attempts.
Obtain a statement or affidavit from complainant concerning his attempts
to meet with the agency official and contact the facilities named in
section (I) of the settlement agreement.
This investigation must be completed within forty-five calendar days of
the date this decision becomes final, and a copy mailed to complainant.
Based on this information, the agency shall determine whether it breached
the January 30, 1998 settlement agreement. Within sixty calendar days of
the date this decision becomes final, the agency shall issue a new final
decision concerning the claims of breach. A copy of this decision,
along with applicable appeal rights, must be mailed to complainant.
A copy of the agency's letter transmitting the investigative file to
complainant, and a copy of the agency's decision and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
May 31, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.
2Complainant filed a separate complaint concerning the denial of
transfer on discriminatory grounds, currently pending in EEOC Appeal
No. 01994726. Since ordering the transfer is beyond the scope of the
settlement agreement, this matter is not at issue in the present case.