Henry Maldonaldo, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 28, 2000
01990862 (E.E.O.C. Feb. 28, 2000)

01990862

02-28-2000

Henry Maldonaldo, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Henry Maldonaldo v. United States Postal Service

01990862

February 28, 2000

Henry Maldonaldo, )

Complainant, )

)

v. ) Appeal No. 01990862

) Agency No. 1-H-321-0050-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On November 3, 1998, complainant filed a timely appeal with this

Commission from a final decision (FAD) by the agency dated August 26,

1998, and received by complainant's representative on October 7, 1998,

finding that it was in compliance with the terms of the March 19,

1998 settlement agreement into which the parties entered.<1> See 64

Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be codified and hereinafter

referred to as EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. �

1614.504(b); EEOC Order No. 960, as amended.

The settlement agreement provided, in pertinent part, that:

(1) "[Complainant] agrees to dismiss his EEO complaint #1-H-321-0050-98

and all grievances will be withdrawn that involve this case."

(2) "[The Agency] agrees to change [complainant's] job description to

read, AFC at Machines and Mark II's in Operation OIO and to change the

level to level V (5)."

By letter to the agency dated June 22, 1998, complainant alleged that

the agency was in breach of the settlement agreement, and requested that

the agency reinstate his complaint. Specifically, complainant alleged

that the agency rescinded his promotion to a level 5 position as an AFC

at Machines and Mark II's as stipulated in the settlement agreement.

In its August 26, 1998 FAD, the agency concluded that complainant had in

fact breached the March 19, 1998 agreement when he failed to withdraw his

union grievance which resulted in a step 3 decision dated April 8, 1998.

On appeal, complainant's attorney argues that complainant fully complied

with the agreement's provision that required him to withdraw grievances.

Complainant's attorney specifically argues that complainant instructed

his union representative, in writing, to withdraw the grievance based

upon the settlement agreement; and that the union's regional level failed

to do so, because it purportedly "does not like the "Redress" program."

The record in this case contains a letter dated March 21, 1998, wherein

the union representative informs an agency union vice president in

Orlando, Florida, to withdraw complainant's grievance because it was

"settled at . . . EEO hearing on March 19, 1998."

64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

referred to as 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 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).

In the instant case, the record contains a copy of a letter from

complainant's union representative advising the union of complainant's

March 19, 1998 agreement with the agency and complainant's request to

withdraw his pending grievance. The record indicates, however, that

the grievance was not withdrawn and that ultimately a step 3 decision

was reached.

The settlement agreement provides that complainant agrees to withdraw

his grievance in exchange for the agency's agreement to promote him to

a level 5 position. Upon review, we find that complainant has fully

complied with the agreement between the parties. The record reveals that

complainant properly instructed his union representative to withdraw his

pending grievance, as evidenced by the March 21, 1998 correspondence.

The fact that the grievance continued through to the step 3 decision

is not attributable to complainant's failure to seek withdrawal of

the grievance. Complainant agreed to withdraw his grievance and made

a good faith effort to comply with that provision of the agreement.

Accordingly, the agency's decision to deny complainant's request for

reinstatement of his complaint was improper and is REVERSED. The complaint

is REMANDED for further processing in accordance with the Order below.

ORDER

The agency is ORDERED to process complainant's complaint from the point

where processing ceased. The agency shall acknowledge to complainant

that it has received the complaint within thirty (30) calendar days of

the date that this decision becomes final.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (R1199)

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:

February 28, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.