01981755
11-27-1998
Ed A. Delos Reyes, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ed A. Delos Reyes v. United States Postal Service
01981755
November 27, 1998
Ed A. Delos Reyes, )
Appellant, )
)
v. ) Appeal No. 01981755
) Agency No. 5P-1009-90
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's October 23, 1997
decision finding that the agency had not breached four separate settlement
agreements.
The record shows that appellant and the agency entered into settlement
agreements on October 12, 1988; December 18, 1990; April 14, 1993; and
October 15, 1993. The record indicates that appellant contacted an EEO
Counselor on May 13, 1997 to raise breach allegations.<1> In response
to agency requests for clarification, appellant subsequently clarified
his breach allegations. In the decision the agency found that the agency
had complied with the agreements.
EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties shall be
binding on both parties. If the complainant believes that the agency
has failed to comply with the terms of a settlement agreement, then the
complainant shall notify the EEO Director of the alleged noncompliance
"within 30 days of when the complainant knew or should have known of
the alleged noncompliance." 29 C.F.R. �1614.504(a). The complainant
may request that the terms of the settlement agreement be specifically
implemented or request that the complaint be reinstated for further
processing from the point processing ceased. Id.
Settlement agreements are contracts between the appellant and the agency
and it is the intent of the parties as expressed in the contract, and not
some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th
Cir. 1938). In reviewing settlement agreements to determine if there is
a breach, the Commission is often required to ascertain the intent of the
parties and will generally rely on the plain meaning rule. Wong v. United
States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing
Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,
1991)). This rule states that if the writing appears to be plain and
unambiguous on its face, then its meaning must be determined from the
four corners of the instrument without any resort to extrinsic evidence
of any nature. Id. (citing Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984)).
The Commission finds that it is not clear what breach allegations
appellant is raising. Appellant's two undated clarification letters
received by the agency in August 1997 reference different allegations.
One of the clarification letters from appellant lists 4 allegations,
while the other clarification letter lists possibly 19 allegations. It is
not clear what settlement agreements are at issue in the clarification
letter containing possibly 19 allegations. Therefore, the Commission
shall remand the matter so that the agency may contact appellant to
attempt once more to clarify what allegations are at issue.
Even if the Commission accepted the agency's definition of the allegations
as correct, we find that the agency has not submitted sufficient evidence
to show that the agency complied with the settlement agreements.
The agency's decision references statements by management providing
information as to what actions occurred or the rationale for certain
actions. The record, however, contains no affidavits or other statements
(or other evidence) from the actual management officials who have direct
knowledge of the claims made by the agency in the agency's decision.
For instance, the agency found that appellant was given the proper amount
of time to deliver his mail and that his lunch location was changed
because his route was changed. The agency has submitted no evidence
to support such findings. There is no affidavit from an appropriate
agency official discussing the amount of time appellant was given to
deliver his mail. There are no documents or affidavits from the agency
showing appellant's route at the time the relevant agreement was entered
into and showing appellant's route after the agreement was entered into.
Nor are there any affidavits from appropriate agency officials explaining
the meaning of the purported change in appellant's route in relation to
his lunch location.
The Commission can not find compliance with the four settlement agreements
based simply on the agency's claim as to what particular managers stated.
The managers' statements must be in the record to constitute evidence
of compliance. Therefore, we shall remand the matter so that the agency
may, after clarifying the allegations, supplement the record with evidence
of compliance.
The agency's decision finding that the four settlement agreements have
not been breached is VACATED and we REMAND the four settlement agreements
to the agency for further processing in accordance with this decision
and applicable regulations.
ORDER
The agency shall contact appellant to clarify the breach allegations.
After providing appellant with the opportunity to clarify the breach
allegations, the agency shall supplement the record with evidence of
compliance with the four settlement agreements. Such evidence shall
consist of affidavits from appropriate agency officials and copies of
documents showing compliance. Within 60 days of the date this decision
becomes final the agency shall issue a new decision determining whether
the agency breached the four settlement agreements (entered into
on October 12, 1988; December 18, 1990; April 14, 1993; and October
15, 1993). A copy of the agency's new decision must be sent to the
Compliance Officer referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
November 27, 1998
______________________ ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1Appellant also apparently raised allegations of discrimination on May 13,
1997.