0120064540
03-12-2008
Kevin O'Malley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (New York Metro), Agency.
Kevin O'Malley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(New York Metro),
Agency.
Appeal No. 0120064540
Agency No. 1A-073-0020-06
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated June 29, 2006, finding that the agency was
in compliance with the terms of the April 14, 2006 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.
The settlement agreement provided, in pertinent part, that:
(1) [An agency official] agrees to expunge Mr. O'Malley's Letter
of Warning dated 1/31/06 for "Failure to meet attendance requirements
of your position" on 5/1/06. The time delay is due to the fact that
[agency management] needs time to further investigate Mr. O'Malley's
FMLA coverage for lateness due to medication prescribed by his doctor.
(2) [An agency official] will let Mr. O'Malley know if any additional
information is needed from his doctor by 5/1/06, on his current approved
FMLA application.
(3) Mr. O'Malley acknowledges that any lateness that is not due to
his FMLA approved leave will be subject to Postal leave regulation and
to be regular in attendance.
According to the FAD, complainant alleged that the agency breached the
settlement agreement in a letter received by the agency on May 13, 2006.
The FAD states that in that letter, complainant contended that the
agency breached the agreement because the agency official named in
the agreement was on vacation on May 1, 2006, leaving the terms of the
agreement unexecuted by that date.
In its June 29, 2006 FAD, the agency concluded that it did not breach
the agreement because complainant's letter of warning was expunged,
and a management official informed complainant that he must provide
additional information from his physician to obtain FMLA approval.
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).
In the instant case, we are unable to ascertain whether the agency
breached the agreement. While the FAD references an interview with
agency officials regarding the agency's compliance with the agreement, the
record does not contain sworn affidavits from these officials addressing
complainant's breach claim or any other persuasive evidence addressing
complainant's breach claim. Therefore, the Commission determines that the
FAD's conclusions are not supported by persuasive independent evidence.
In so finding, we note that although it is ultimately complainant's
burden to prove that a breach has occurred, the Commission has held
that the "agency has the burden of providing evidence and/or proof to
support its final decisions." Ericson v. Department of the Army, EEOC
Request No. 05920623 (January 14, 1993). Given this lack of evidence
in the record, we are unable to ascertain whether the agency breached
the settlement agreement.
CONCLUSION
Accordingly, the Commission VACATES the final agency decision and REMANDS
this matter to the agency for further processing in accordance with the
ORDER below.
ORDER
The agency is ORDERED to take the following actions:
The agency shall supplement the record with evidence clearly showing
that it has complied with the terms of the April 14, 2006 settlement
agreement, including affidavits from management addressing complainant's
breach claim. Within thirty (30) calendar days of the date this decision
becomes final, the agency shall issue a new decision concerning whether
it breached the April 14, 2006 settlement agreement.
A copy of the agency's new decision must be sent to the Compliance
Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (M0701)
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 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 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_March 12, 2008_________________
Date
2
0120064540
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120064540
6
0120064540