0120133305
10-08-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120133305
Agency No. 4G-335-0056-12
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated August 9, 2013, finding that it was in compliance with the terms of a March 29, 2012 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On March 29, 2012, Complainant and the Agency entered into a settlement agreement to resolve a matter that had been pursued through the EEO complaint process. The settlement agreement contained in pertinent part, the following provisions:
4. Management agrees to change all references of AWOL to LWOP for the dates of 11/28/2011 to 12/30/2011.1
. . .
[unnumbered] The parties understand that the terms of this agreement are protected by the Privacy Act as describe below and agree to keep the terms of this agreement confidential except as otherwise required by law and as necessary to carry out the terms of the agreement or resolve disputes over compliance of this agreement.
By letter to the Agency, dated August 3, 2013, Complainant alleged breach of the agreement. Specifically, Complainant alleged that the Postmaster violated the above-referenced confidentiality provision of the agreement and "is in noncompliance/contempt of our agreement by not adhering to item [provision] number #4 of our agreement. This has resulted in me not receiving a transfer."
In its August 9, 2013 final decision, the Agency concluded that to the extent it had breached the agreement, it had cured any breach of provision 4. Specifically, the Agency stated that after having become aware of Complainant's allegation of breach in August 2013, the Postmaster of Complainant's facility changed the references to Complainant being AWOL on the agreed upon dates to LWOP as required by the agreement. In support of its assertions, the Agency submitted copies of Complainant's Form 3972 Absence Analysis for the period of 2011 through 2013. The Agency also noted that Complainant later applied for and was selected for a transfer to the Agency's Eatonton, Georgia facility. Therefore, the Agency determined that it was not in breach of provision 4 of the agreement.
Regarding the confidentiality provision, the record shows that, on July 22, 2013, Complainant was denied his request to transfer to the Maitland postal facility "due to [his] unacceptable Attendance Record." Complainant's Postmaster denied discussing the instant settlement agreement with any Agency official, including the Postmaster of the Maitland postal facility, where Complainant was seeking a transfer. In a statement dated July 29, 2013, Postmaster stated on an unspecified date, the Postmaster of Maitland contacted him to discuss Complainant's transfer request and he gave Complainant "a glowing recommendation." The Postmaster further stated when the Maitland Postmaster asked him about Complainant's absence during the month of December 2011, and "I simply said he was absent." The Postmaster stated, "there was no discussion about an EEO." The Maitland Postmaster confirmed that Complainant's Postmaster did not discuss the instant agreement with her. Rather, she stated that several days after her discussion with the Postmaster, she was informed by Complainant's union representative that Complainant had a settlement agreement and was provided a copy of the instant agreement. Accordingly, the Agency also found no breach of the confidentiality provision of the agreement.
The instant appeal followed.
ANALYSIS AND FINDINGS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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, the record in this case contains insufficient evidence for us to determine whether a breach of provision 4 of the instant settlement agreement has occurred. The Agency's determination of no breach is apparently predicated upon copies of Complainant's attendance records for the 2001- 2013 time period. See Agency Statement on Appeal, Exhibit 8. However, we cannot readily discern from the copies of these forms, with any clarity or precision, whether a cure of any alleged breach was effectuated. Without further clarification, it appears that the notation "AWOL" still exists for the period of November 28, 2011 to December 30, 2011. The record contains no accompanying affidavit from the Postmaster or any other responsible management official that he or she purportedly fulfilled the obligations under provision 4, or otherwise directing us to the pertinent pages of the submitted forms with any accompanying explanation. Given this lack of evidence, we are unable to ascertain whether the Agency complied with provision 4.
Regarding the confidentiality provision, however, we note that the statement from an Agency Postmaster, referenced above, supports the Agency's determination that the Postmaster did not breach the confidentiality provision.
In conclusion, the Agency's finding of no breach of confidentiality provision of the March 29, 2012 settlement agreement is AFFIRMED. However, the Agency's finding of no breach of provision 4 is REVERSED. This matter is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to take the following action:
(1) The Agency shall supplement the record with evidence clearly showing that it has complied with provision 4 of the March 29, 2012 settlement agreement. The supplementation of the record shall include adequate documentation, including affidavits from the Postmaster and other responsible management officials indicating whether the Agency changed all references of Complainant's AWOL to LWOP for the dates of November 28, 2011 to December 30, 2011.
(2) Within thirty (30) calendar days of the date this decision becomes final, the Agency shall issue a new decision concerning whether it breached provision 4 of the March 29, 2012 settlement agreement.
(3) A copy of the Agency's new decision must be sent to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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, DC 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 (M0610)
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), at 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0610)
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
October 8, 2014
__________________
Date
1 The settlement agreement also provided for the Agency to remove a Letter of Warning from all files and pay Complainant for 23 hours for the dates December 24, 2011 through December 30, 2011. These provisions are not at issue in the instant case.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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