Cecil Hayes, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 8, 1999
01990593 (E.E.O.C. Dec. 8, 1999)

01990593

12-08-1999

Cecil Hayes, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Cecil Hayes, )

Complainant, )

)

v. )

) Appeal No. 01990593

William J. Henderson, ) Agency Nos. 4-G-780-0224-98

Postmaster General, ) 4-G-780-0245-98

United States Postal Service, ) 4-G-780-0291-98

Agency. )

____________________________________)

DECISION

On October 24, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD), dated October 5, 1998,

finding that it was in compliance with the terms of the July 24,

1998 settlement agreement into which the parties entered.<1> See 64

Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be codified and hereinafter

referred to as EEOC Regulations 29 C.F.R. �� 1614.402, .504(b)); EEOC

Order No. 960, as amended.

The settlement agreement provided, in pertinent part, that:

The Letter of Warning issued February 20, 1998 be expunged from all

records including the disciplinary file located in the Labor Relations

file in accordance with START Resolution dated May 6, 1998.

By letter to the agency dated September 23, 1998, complainant

alleged that the agency was in breach of the settlement agreement,

and requested that the agency specifically implement the its terms.

Specifically, complainant alleged that the agency failed to permit him

or his representative to review complainant's file in the Austin Labor

Office, in order to remove the Letter of Warning (LOW).

On October 5, 1998, the agency issued a FAD, finding no breach of the

settlement agreement. The agency determined that the LOW had been

removed from complainant's file. Further, the agency stated that �it

is not normal policy for employees to review the administrative files�

and that the agreement simply provided that the LOW would be expunged.

The agreement did not state that complainant would be allowed to review

the file or personally pull the LOW.

The record in this case contains a statement prepared by an agency

official dated October 5, 1998, that indicated complainant's file was

reviewed and that the LOW �was pulled.�

EEOC Regulation 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified

at 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).

In the instant case, we find that the agency has complied with the

settlement agreement. Applying the plain meaning rule, the Commission

determines that the settlement language clearly states that the LOW would

be expunged from all records including complainant's disciplinary file

located in the Labor Relations file. The record contains the statement

of an agency official reflecting that complainant's file was reviewed and

that the LOW was removed. The agreement does not state that complainant

would be permitted to review the file. To the extent that complainant

interpreted the provisions of the settlement agreement as requiring that

agency officials provide him with the personal opportunity to review the

Austin Labor Office file to ascertain that the LOW had been expunged,

such interpretation should have been reduced to writing as part of the

settlement agreement. Jenkins-Nye v. General Services Administration ,

EEOC Appeal No. 01951903 (March 4, 1987).

Accordingly, the agency's decision finding no breach of the settlement

agreement was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

Dec. 8, 1999

____________________________

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 Equal Employment Assistant

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.