01A13522
03-04-2003
Richard Padilla, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Richard Padilla v. United States Postal Service
01A13522
March 4, 2003
.
Richard Padilla,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13522
Agency No. 4E-870-0129-00
DECISION
Complainant filed a timely appeal with this Commission from a Letter
of Determination (LOD) by the agency dated April 4, 2001, in which the
agency found that it was in compliance with the terms of the July 26,
2000 settlement agreement between complainant and the agency. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405 and 1614.504(b).
The settlement agreement provided, in pertinent part, that �the LOW
. . . dated April 20, 2000 will be held in abeyance until October 26.
At that time it will be dropped if there is no repetition of the behavior.
If there is repetition it will be contained in [complainant's] O.P.F.,�
and that �the suspension dated May 10th . . . will remain in abeyance
until January 26, 2001. At that time the suspension will be removed from
the file if there is no repetition.� In a letter received by the agency
on February 15, 2001, complainant notified the agency that he believed
the agency was in breach of the settlement agreement, as it had failed to
comply with the aforementioned provisions of the settlement agreement.<1>
In its April 4, 2001 LOD, the agency concluded that the settlement
agreement had not been breached by the agency as alleged. The assigned
EEO Manager (M1) stated that he had inquired into the matter, and had
found no breach of the settlement agreement. M1 found that the letter
of warning (LOW) issued April 20, 2000 had in fact been held in abeyance
as agreed, and that it was rescinded and never placed in complainant's
official personnel file. M1 further found that the May 10, 2000
suspension was never placed in complainant's official personnel file.
M1 did indicate, however, that the letters are still in the custody of
the agency at some level, as he states in the LOD that he did access
both letters as part of his investigation into the breach allegation.
M1 provided in the LOD that �both letters have diagonal lines through
them that negate the letters and the actions,� that �[the relevant agency
official] has stated that his initials and date are noted on both letters
along with reference to the mediation as the reason both actions were
rescinded,� and that �[the relevant agency official] stated that your
Union Stewards are aware the actions are no longer valid and won't be
referenced in the future.�
Complainant subsequently appealed the agency's finding of no breach to
the Commission. In his appeal, complainant does not contest the factual
assertions made by the agency in its LOD, but argues that the agency
has breached the settlement agreement by maintaining these letters of
warning and suspension �on file,� contrary to the �clear� agreement that
the letters be �removed from the file.� The agency presents no further
argument on appeal.
The Commission's regulations provide 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. 29 C.F.R. �
1614.504(a). 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. Herrington v. Department
of Defense, EEOC Request No. 05960032 (Dec. 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 (Aug. 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. Hyon v. United States Postal
Serv., EEOC Request No. 05910787 (Dec. 2, 1991). This rule provides
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. Montgomery Elevator
Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
Applying this analysis to the instant matter, we cannot conclude that
complainant has established that the agency has breached the settlement
agreement. As for the agency's treatment of the April 20, 2000, LOW,
there is no indication that the agency's continued retention of the LOW,
as marked and annotated as described above, and in some location other
than in complainant's official personnel file, constitutes a failure to
�drop� the matter and not place the LOW in his �O.P.F.� Similarly,
while the agency has indicated that it has retained a marked and
annotated copy of the May 10, 2000 suspension document, complainant has
not provided sufficient evidence to show that this retention is in �the
file� from which it was to have been removed pursuant to the settlement
agreement. While complainant appears to argue that, in order to abide
by the settlement agreement, the agency must expunge from all of its
records any copies of the documents at issue, the agreement, as drafted,
does not impose such an obligation upon the agency. Accordingly, we
find that complainant has not established that the agency has failed to
abide by the terms of the settlement agreement.
Therefore, after a thorough examination of the record on appeal, including
complainant's arguments, the agency's reply, and arguments and evidence
not specifically addressed in this decision, it is the decision of the
Commission to AFFIRM the agency's letter of determination.
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 (S0900)
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 (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 4, 2003
Date
1 This letter from complainant was not
included by the agency in the record on appeal. However, complainant
does not challenge the agency's characterization of his breach allegation
in its LOD.