0120090504
02-27-2009
Christopher R. Howell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Christopher R. Howell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090504
Agency No. 4H-310-0028-06
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated June 23, 2008, finding that it was in
compliance with the terms of a February 3, 2006 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The February 3, 2006 settlement agreement provided, in pertinent part,
that the agency agrees to do the following action:
"Adjustment for 8 hours will be completed reversing AWOL to AL for PP
23-02-05. Corrective action of seven days will be removed from files,
dated 12/9/05."
By PS Form 2564-A "Information for Pre-Complaint Counseling" dated May 28,
2008, complainant alleged breach. Specifically, complainant alleged that
"according to the agreement it would not be cited in other proceedings.
[Attendance Control Officer] violated the settlement agreement and also
showed that it has not been removed from the files."
In its June 23, 2008 final decision, the agency found no breach.
The agency stated that a review of eRMS [Enterprise Resource Management
System] administrative action revealed that on December 9, 2005, an
annotation of "AWOL" was listed with a stipulated removal date of May 21,
2010 from the eRMS database. The agency further stated that a subsequent
review of the payroll versus the eRMS Reconciliation Report current as
of Pay Period 11, Week 2 of 2008 revealed that for Pay Period 23 Week 2
of the 2005 calendar year (PP 23-02-05), complainant was paid 8 hours of
annual leave. The agency stated a further review of PS Form 3972 "Absence
Analysis of Leave Year 2005" revealed there is no annotation of "AWOL"
on that date. Furthermore, the agency stated that a subsequent review
of complainant's administrative files revealed his file was reviewed on
February 10, 2006, and since the suspension was to be pulled from his
file if no similar infraction had occurred, the suspension was reduced
to an official discussion.
The agency stated that according to the Acting South Georgia District
eRMS administrator (A1), the eRMS leave tracking system monitors the
activity of the attendance disciplinary actions to ensure the entries
are logged in the system for tracking purposes. A1 stated that while
the system automatically maintains the data for a period of three years,
the disciplinary action description can be changed to reflect "no action"
taken to include comments of the settlement agreement and reason for
removing the AWOL from an employee's PS Form 3972. The agency stated
that a review of the eRMS administrative report provided by A1 showed
the annotation complainant observed during his meeting with ACO has been
removed and is no longer in the eRMS system.
Finally, the agency concluded because complainant was not charged with
AWOL and has been credited with 8 hours of annual leave, the discipline
has been removed from his administrative file and the eRMS administrative
database no longer reflects the previous AWOL status, there is no breach
of the February 3, 2006 settlement agreement.
The record contains a copy of A1's affidavit dated June 8, 2008. Therein,
A1 stated that complainant's supervisor is responsible for entering
information in the eRMS system and that complainant's AWOL is still
available in eRMS under the administrative action screen (disciplinary
action) because the system maintains the data for a period of three years.
However, the disciplinary action description can be change to reflect
'no action' taken to include comments of the settlement and reason for
removing the AWOL from the employee's 3972 leave analysis record."
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).
First, we note that complainant does not dispute the agency's
determination regarding that portion of the settlement agreement relating
to the adjustment for 8 hours, reversing his AWOL to annual leave for
PP 23-02-05. Therefore, we will only address the remaining portion of
the agreement, concerning the removal of corrective action of seven
days dated December 9, 2005. Here, the terms of the settlement agreement
provides for an express agency obligation to remove the corrective action
of seven days dated December 9, 2005 from "files."
In its final decision, the agency concluded that based on the information
from A1, complainant's discipline dated December 9, 2005 has been removed
from his administrative file and the eRMS administrative database no
longer reflects the previous AWOL status. However, we note that in her
affidavit, A1 made generalized comments indicating that complainant's
AWOL is still available in eRMS "under the administrative action screen
(disciplinary action) because the system maintains the data for a period
of three years." We note that portion of the settlement agreement
explicitly states that the agency agreed to remove the corrective action
of seven days dated December 9, 2005 from complainant's "files." We note
that a review of the record indicates that complainant's corrective action
of seven days dated December 9, 2005 is still in "files." Based on the
foregoing, we find that the agency breached the agreement by failing to
remove the corrective action dated December 9, 2005 from the files.
To remedy a finding of breach, the Commission may order reinstatement of
the underlying complaint, or enforcement of the agreement's terms. See 29
C.F.R. � 1614.504(c). We find that in this particulate circumstance,
the proper remedy is to order the agency to comply with the agreement.
Accordingly, the Commission REVERSES the agency's finding of no breach
of the settlement agreement and REMAND this matter so that the agency
can undertake remedial action in accordance with the ORDER below.
ORDER
The agency is ORDERED to implement the terms of the settlement agreement
by undertaking the following action:
Within fifteen (15) calendar days after the date this decision becomes
final, the agency shall remove the corrective action dated December 9,
2005 from all files, as provided in the settlement agreement.
The agency is further directed to submit a report of compliance,
as provided in the "Implementation of the Commission's Decision."
The report shall include all supporting documentation verifying that
the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 77960, Washington,
D.C. 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 27, 2009
__________________
Date
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0120090504
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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