0120092915
12-15-2009
Gary L. Miller, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gary L. Miller,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092915
Agency No. 1H-324-0013-09
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated June 9, 2009, finding that the agency was in compliance
with the terms of the March 9, 2009 settlement agreement into which the
parties entered. See 29 C.F.R. �� 1614.402; 1614.405; and 1614.504(b).
The settlement agreement provided, in pertinent part, that:
(1) The December 22, 2008 Letter of Warning shall be removed in
[n]ine (9) months from the date of issue provided [complainant] has no
same infractions.
(2) The December 22, 2008 Letter of Warning may only be cited in
the nine (9) month period for any discipline regarding a safety talk
violation.
By letter to the agency dated April 14, 2009, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency cited the December 22, 2008 Letter of Warning
as part of the justification for an April 13, 2009 letter of warning in
lieu of a suspension for alleged unsatisfactory performance, issued after
the execution of the settlement agreement. Complainant stated that the
April 13 disciplinary action violated the agency's agreement to cite the
December 22 letter only for discipline regarding a safety violation,
which was not the case. Complainant asked the agency to rescind the
April 13 letter and discipline the issuing manager.
In its June 9 final decision, the agency concluded that it is in
compliance with the March 9 agreement. Specifically, the agency stated
that, since learning of the error, the Senior Plant Manager issued
an instruction to reduce the April 13 discipline to a lesser letter
of warning. The record contains a letter of warning dated May 7, 2009,
implementing that instruction.
The instant appeal from complainant followed the final agency decision.
On appeal, complainant stated that the agency acknowledged a breach,
but found that the breach was cured when the Senior Plant Manager
reduced the letter of warning in lieu of suspension, that improperly
cited the December 2008 warning, to a lesser letter of warning.
Complainant asserts that this had not, in fact, cured the breach.
Rather, complainant asserts that even the lesser warning still arises
from a disciplinary record that cited as a past element the December
2008 letter of warning that was settled.
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).
Here, we disagree with the agency stating that it cured any breach.
The agency agreed that it would not cite complainant's December 22,
2008 letter of warning for discipline other than that for safety
violations. However, it cited the December LOW in a "proposed letter
of warning . . . in lieu of a seven (7) day time off suspension for
. . . Unsatisfactory Performance." Subsequently, the agency reduced the
penalty to a lesser letter of warning and asserted that its issuance was
a reduction that cured the inappropriate cite in the proposed letter of
warning in lieu of suspension. We disagree. We find the agency sustained
a disciplinary action, albeit a lesser one, based on a notice of proposed
discipline that improperly cited to the December 2008 letter of warning.
Moreover, we note that the violation of the terms of the agreement
occurred about one month after its execution by the very manager who
entered into the settlement agreement in the first place.
Accordingly, we REVERSE the agency's finding of compliance and REMAND
the matter for specific implementation in accordance with 29 C.F.R. �
1614.504(a).
ORDER
To the extent that it has not already so, we ORDER the agency to remove
the April 2009 proposed letter of warning in lieu of suspension, and
the corresponding May 2009 letter of warning from complainant's agency
records, within thirty (30) days from the date this decision becomes
final. Neither of these disciplinary actions may be cited in future
disciplinary actions.
Documentation supporting compliance with this Order must be sent to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (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
December 15, 2009
__________________
Date
2
0120092915
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092915