Joe Arredondo III, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 17, 2000
01985243 (E.E.O.C. Feb. 17, 2000)

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.