01A43907_r
11-17-2004
Douglas H. Jaffe, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Douglas H. Jaffe v. United States Postal Service
01A43907
November 17, 2004
.
Douglas H. Jaffe,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43907
Agency No. 4E-980-0128-00
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated May 5, 2004, finding that it was in
compliance with the terms of the March 30, 2001 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
(1) The [agency] will give [complainant] a start time of 2200 no later
than [April 2, 2001].
(2) The [agency] will restore 50 hours of annual leave to [complainant].
(3) If [complainant] has no further disciplinary actions and maintains
regular attendance, the letter of suspension dated [July 12, 2000]
and the letter of warning dated [November 13, 2000], will be removed
[May 13, 2001].
(4) [Complainant] will be trained as soon as possible on the 1, 3, 5
scheme and utilized in that section according to the needs of the service.
Every consideration should be given to assigning [complainant]
Sunday/Monday [days off] to care for his parent, and [named agency
official] will talk to [named agency official] for assistance.
An investigation will be initiated relative to the throwing of a mail
bag by [co-worker] at [complainant] on [February 1, 2001] and to the
throwing of mail by [same co-worker] at [complainant] . . .
An investigation will be initiated of sexual comments made to
[complainant and two co-workers] by [same co-worker named above].
The results of the investigations mentioned in paragraphs 6 and 7 above
will not be shared with [complainant].
Previously, complainant claimed that the agency had failed to comply with
provisions (1), (3), (4), (5), (6) and (7). In our decision in Jaffe
v. United States Postal Service, EEOC Appeal No. 01A14482 (October 17,
2002), the Commission found that the agency had complied with provisions
(1) and (4). The Commission found the record inadequate to determine
the agency's compliance with the remaining provisions in question, and
ordered the agency to conduct a supplemental investigation regarding
provisions (3), (5), (6) and (7). Jaffe, EEOC Appeal No. 01A14482.
The Commission further ordered the agency to issue a final decision
regarding its compliance with the remaining provisions. Id.
In a January 27, 2003 decision, the agency concluded that it fully
complied with terms of the March 30, 2001 settlement agreement.
Complainant filed an appeal from the agency's decision finding it was in
compliance with the terms of the settlement agreement. Specifically,
complainant stated that on three separate occasions (January 4, 2003,
January 18, 2003, and January 28, 2003), he obtained copies of his
official personnel file (OPF) in which appeared the documents the agency
was ordered to remove. Complainant further challenged the investigations
(provisions (6) and (7)) conducted by the agency regarding acts of
violence and sexual harassment. In our decision in Jaffe v. United
States Postal Service, EEOC Appeal No. 01A32230 (March 31, 2004), request
for reconsideration denied, EEOC Request No. 05A40745 (June 25, 2004),
the Commission found that the agency had complied with provisions(5),
(6) and (7). The Commission found the record inadequate to determine the
agency's compliance with provision (3). Jaffe, EEOC Appeal No. 01A32230.
The Commission ordered the agency to conduct a supplemental investigation
to address complainant's contention that on three dates in January 2003,
he received copies of the documents that were supposed to be removed from
this OPF. Id. The Commission further ordered the agency to issue a new
decision determining whether the agency complied with provision (3). Id.
In its May 5, 2004 decision, the agency concluded that it has complied
with provision (3) of the March 30, 2001 settlement agreement. The agency
cited an affidavit from Person A, Acting Manager, Personnel Services,
Seattle District, stating that she reviewed complainant's OPF page
by page and there is no discipline in complainant's OPF. The agency
also cited an affidavit from Person B, Labor Relations Specialist,
Seattle District, attesting that in January 2003, she was responding
to complainant's discovery requests in another case. She avers that
complainant's OPF contained no disciplinary records. She also stated
that an employee's OPF is not the only place where disciplinary actions
may be kept by the agency. She noted that the agency routinely creates
and maintains other files such as the Level 2 Floor File and an Adverse
Action File which may contain copies of disciplinary actions. The agency
maintains that complainant's OPF was purged of all disciplinary actions
per the agreement and stated that the fact that complainant may have
received copies of the disciplines via the discovery process does not
mean they came from the OPF.
On appeal, complainant argues that the settlement agreement specifies
that �the discipline must be removed period not be kept in other files
such as level 2 floor files and adverse action files.� Complainant notes
that the agreement does not just limit removal of the discipline from OPF.
The record contains an April 8, 2004 affidavit from Person A, Acting
Manager, Personnel Services, stating that she searched complainant's
OPF in April 2004 and found no mention of the July 12, 2000 suspension
or the November 13, 2000 Letter of Warning.
The record also contains an April 29, 2004 affidavit from Person B,
Labor Relations Specialist, stating that in January 2003, she responded
to complainant's discovery request. She states that during January
2003, she sent complainant three packets of material. She states
that complainant did not receive a copy of his OPF on January 4, 2003.
Rather, she states that at this time complainant was provided copies of
documents added to the OPF, following the date of his earlier request,
which she states did not include the discipline at issue, as they were not
in his OPF. Person B notes, however, that the discipline at issue was
contained in the� Everett Level 2 floor file� and in the Adverse Action
file as listed in the Revised Request for Production No.2. Person B
states that complainant was provided these two files on January 4, 2003.
Person B notes that complainant was provided a copy of his complete OPF
on either January 18, 2003, or January 28, 2003. Person B notes that
complainant also requested a copy of his EEO file. Person B states
that if complainant received a copy of the discipline at issue, the EEO
or grievance files could have been the origin of those documents, since
the OPF did not contain the referenced discipline. Person B also states
that she did not provide a third copy of complainant's OPF on January 28,
2003; however, she does remember providing some grievances to complainant
in January.
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).
Upon review, we find that the agency has breached provision (3) of the
March 30, 2001 settlement agreement. Provision (3) provides that if
complainant has no further disciplinary actions and maintains regular
attendance, the letter of suspension dated July 12, 2000, and the letter
of warning dated November 13, 2000, will be removed by May 13, 2001. The
record contains two affidavits from Person A and Person B stating that the
discipline at issue was removed from complainant's OPF but acknowledging
that this discipline was contained in the �Everett Level 2 Floor File�
and in the �Adverse Action� file. We note that the settlement agreement
does not specify that the agency would only remove the discipline at
issue from complainant's OPF. We find that maintaining the discipline
at issue in an �Everett Level 2 Floor File� and an �Adverse Action�
file violates provision (3) of the agreement. See Sanchez v. Social
Security Administration, EEOC Appeal No. 01A03581 (January 19, 2001)
(finding that maintaining a copy of settlement agreement identifying
negative actions to be removed from complainant's files, in an �adverse
action� file violated a settlement agreement provision requiring removal
of all negative references from official personnel files). Accordingly,
we find the agency breached provision (3) of the agreement.
Once noncompliance with a settlement agreement is found, as in the
instant case, the remedial relief is either the reinstatement of
the complaint for further processing or specific enforcement of the
settlement agreement. If a complainant's complaint is reinstated for
further processing, then the parties must be returned to the status
quo at the time that the parties entered into the settlement agreement,
which requires that complainant return any benefits received pursuant to
the settlement agreement. See, e.g., Armour v. Department of Defense,
EEOC Appeal No. 01965593 (June 24, 1997); Komiskey v. Department of the
Army, EEOC Appeal No. 01955696 (September 5, 1996). Therefore, given
the other consideration exchanged pursuant to the subject agreement,
we hereby order the agency to specifically perform the actions set forth
in provision (3) of the settlement agreement.
Accordingly, the agency's final decision finding no breach of provision
(3) of the settlement agreement is REVERSED and the matter is REMANDED
for compliance with the Order stated herein.
ORDER
Within 10 calendar days of the date this decision becomes final, the
agency is Ordered to implement provision (3) of the settlement agreement
by removing the July 12, 2000 letter of suspension and the November 13,
2000 letter of warning from all official personnel files, including the
�Everett Level 2 Floor File� and the �Adverse Action� file. Within 10
calendar days of the date this decision becomes final, the agency shall
notify complainant that provision (3) has been implemented. A copy
of the agency's notice to complainant must be sent to the Compliance
Officer as referenced herein.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 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 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 (M0701)
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 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 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 17, 2004
__________________
Date