01985243
02-17-2000
Joe Arredondo III, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Joe Arredondo III v. United States Postal Service
01985243
February 17, 2000
Joe Arredondo III, )
Complainant, )
)
v. )
) Appeal No. 01985243
William J. Henderson, ) Agency No. 3-A-1236-90
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On June 17, 1998, complainant filed a timely appeal with this Commission
from a final decision (FAD) by the agency dated May 27, 1998, finding
that it was in compliance with the terms of the April 22, 1991 settlement
agreement into which the parties entered.<1> See 64 Fed. Reg. 37,644,
37,659, 37,660 (1999) (to be codified at 29 C.F.R. ��1614.402, .504(b));
EEOC Order No. 960, as amended.
The settlement agreement provided, in pertinent part, that:
It is hereby agreed that the complainant will receive fourteen (14)
days backpay plus expunction from his official personnel file of all
discipline to date.
On February 3, 1992 complainant made an informal request for counseling
regarding the issues in the instant case. In a letter dated December 9,
1992 the EEO office denied the request, stating that it was a duplicate
of the instant case. It was noted that "management appears to have
breached the resolution" and that complainant's case would be reopened.
Complainant was told that a counselor would contact him. Complainant
asserts that he was never contacted by the EEO office following their
December 9, 1992 letter.
In November 1997 complainant issued several letters, including one to
this office dated November 24, 1997, alleging breach of the settlement
agreement. Specifically, the complainant referred to the EEO office's
observation that a breach may have occurred.
In its May 27, 1998 FAD, the agency found no breach of the settlement
agreement. The agency relied on Payroll Journal records in determining
that complainant had been reimbursed for the fourteen day suspension.
The FAD also stated that complainant's OPF was reviewed and did not
contain any discipline prior to the date of the settlement agreement.
Accordingly, the agency denied complainant's request to reopen his case.
On appeal, complainant contends that the agency breached the settlement
agreement when on June 10, 1992 a Notice of Suspension issued to him
cited a March 26, 1990 letter of suspension. Complainant also presents
additional claims, including: 1) he was not reimbursed for suspensions
that occurred on June 10, 1992, January 29, 1992, and February 11, 1992;
and 2) the re-issuance of a Notice of Proposed Removal was incorrectly
given.
EEOC Regulation 65 Fed. Reg. 37,644, 37,660 (to be codified at 29
C.F.R. 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).
As a preliminary matter, the Commission finds that complainant's claims
regarding reimbursement for 1992 suspensions and proposed removal are not
the subject of the April 22, 1991 settlement agreement. The plain meaning
of the settlement agreement's language does not encompass these claims and
therefore they are not considered here. If complainant wishes to pursue
these matters further he is advised to contact an EEO Counselor thereon.
We find that complainant was given the backpay required by the settlement
agreement. However, the Commission finds that the agency did not submit
sufficient evidence to establish that disciplines occurring before April
22, 1991 had been expunged from complainant's OPF. The agency did not
submit affidavits from agency officials who have relevant knowledge about
the contents of complainant's personnel file. In light of the current
record, which contains an unsigned June 10, 1992 Notice of Suspension
citing a March 26, 1990 discipline, the Commission is unable to make a
determination regarding a breach of the settlement agreement. Therefore,
we shall remand the matter so that the agency can supplement the record
with evidence showing that the agency has expunged the appropriate
documentation, pursuant to the terms of the settlement agreement.
Accordingly, we will VACATE the agency's determination and REMAND the
matter for a supplemental investigation.
ORDER
Within sixty (60) days of the date this decision becomes final, the agency
shall supplement the record with affidavits from agency officials who
have knowledge about complainant's OPF. Thereafter, the agency shall
issue a new final decision addressing complainant's breach claims.
The agency's issuance of a new final decision must be completed within
ninety (90) days of the date this decision becomes final.
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 17, 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.