0120120973
04-20-2012
Kenneth J. Heck, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Kenneth J. Heck,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120120973
Agency No. 1E-981-0020-10
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated October 26, 2011, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Manager at an Agency facility in Seattle, Washington. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On March 2, 2010, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1) The Agency shall issue a Letter of Decision - Letter of Warning (LOW) to Complainant effectively reducing the Notice of Proposed Removal (NoPR) dated November 27, 2009, to a Letter of Warning.
Subsequently, Complainant filed a second EEO complaint which went before an EEOC Administrative Judge (AJ). Before the AJ, Complainant alleged that the Agency breached the March 2, 2010 settlement agreement. Specifically, in a motion dated August 5, 2011, Complainant indicated that the Agency failed to fully execute the settlement agreement when it failed to issue the LOW in lieu of the NoPR. The AJ issued a decision dismissing the EEO Complaint pending before the Commission. The AJ also noted that Complainant failed to raise his claim of breach of settlement agreement with the Agency. As such, the AJ in a decision dated August 30, 2011, remanded the claim of breach of the settlement agreement to the Agency for issuance of a determination on that claim.
In its October 26, 2011 FAD, the Agency concluded that it had complied with the settlement agreement. Complainant alleged that in June 2011, he learned that his electronic personnel file still had a copy of the NoPR. The Agency noted that Complainant and the Agency's Attorney met regarding this issue in July 2011. At that time, Complainant was informed by the Agency's Attorney that his electronic personnel file no longer contained a reference to the NoPR. As such, the Agency found that it had cured any breach of the settlement agreement.
This appeal followed. Complainant asserted that the Agency did not remove the NoPR in a reasonable time frame and that the Agency lacked good faith when it signed the settlement agreement. The Agency requested that the Commission affirm its determination finding no breach of the settlement agreement.
ANALYSIS AND FINDING
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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 indicated that Complainant was aware that his physical personnel file did not have a copy of the NoPR in March 2011 following a review of his file with his Supervisor. In June 2011, Complainant learned that the NoPR was still on his electronic personnel file despite being removed from his "local" file by the Supervisor. The Agency was made aware of the situation when Complainant met with the Agency Attorney on July 26, 2011. The Agency's Attorney provided an affidavit stating that he ensured the removal of the NoPR from Complainant's electronic personnel file and ensured that the LOW replaced the NoPR on August 5, 2011. Therefore, we find that once the Agency was made aware of the situation, the Agency complied with the settlement agreement thereby curing alleged breach.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's determination finding no breach of the settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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
April 20, 2012
__________________
Date
2
0120120973
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120973