Calvin D. Gordon, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 31, 2000
01992852 (E.E.O.C. May. 31, 2000)

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.