Scott C. Andrews, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 22, 2000
01a01279 (E.E.O.C. May. 22, 2000)

01a01279

05-22-2000

Scott C. Andrews, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Scott C. Andrews, )

Complainant, )

)

v. ) Appeal No. 01A01279

) Agency No. 4-G-780-0039-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated September 17, 1999, finding that

it was in compliance with the terms of the January 15, 1999 settlement

agreement into which the parties entered.<1> See 64 Fed. Reg. 37,644,

37,659, 37,660 (1999) (to be codified and hereinafter referred to

as EEOC Regulation 29 C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b);

and 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �

1614.405).

The settlement agreement provided, in pertinent part, that management

would:

(1) expunge from complainant's personnel file a letter of warning issued

September 8, 1998, and all other related documentation;

(2) issue complainant a letter of recognition for carrying out his duties;

and,

(3) reimburse complainant $2.70 in postage costs incurred.

By letter to the agency dated September 8, 1999, complainant alleged that

the agency had failed to act on a March 1, 1999 EEO complaint which he

filed alleging breach of the settlement agreement, and he requested a

hearing before an EEOC Administrative Judge. The agency appears to have

treated complainant's September 8, 1999 letter as notification to the EEO

Director of noncompliance pursuant to 29 C.F.R. � 1614.504. By letter

dated September 17, 1998, the agency concluded that the settlement

agreement had not been breached. In support of this conclusion, the

agency produced an unsworn statement from complainant's supervisor noting

that complainant was presented with the commendation for his work and

the postage reimbursement on January 16, 1999. The agency also produced

a letter from a manager stating that she had confirmed that the letter

of warning was removed from complainant's file by a labor representative

on or about May 22, 1999.<2>

The relevant regulations, 64 Fed. Reg. 37,644, 37,656 (1999) (to be

codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �

1614.504(a)), 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. 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).

In the instant case, complainant has failed to meet his burden to

demonstrate that the settlement agreement has been breached. In the

absence of a time requirement in the settlement agreement for removal

of the letter of warning and related documents, the agreement is

construed to require compliance within a reasonable time. The record

establishes that the letter of warning was removed in a reasonable

time, and complainant has not identified what related documents,

if any, remain in his personnel file. With respect to the letter of

commendation, complainant does not dispute the agency's contention that

it was issued to him, but rather contends that a copy should have been

placed in his personnel file. The terms of the settlement agreement,

however, specifically provide only that the agency will "issue" the

letter, not that it will be placed in complainant's personnel file.

Moreover, complainant has not adduced evidence that the agency, in the

ordinary course, includes such letters in its employees' personnel files.

Interpretations cannot be enforced where they were not reduced to writing

as part of the settlement agreement. See Jenkins-Nye v. General Services

Administration, EEOC Appeal No. 019851903 (March 4, 1987). We have

previously held that if a settlement agreement is made in good faith and

is otherwise valid, it will not be set aside simply because it appears

that one of the parties made a poor bargain. See Ingram v. General

Services Administration, EEOC Request No. 05880565 (June 14, 1988).<3>

Accordingly, the FAD finding no breach of the settlement agreement is

hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

May 22, 2000

Date

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

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.

2Complainant has submitted documents on appeal which include a statement

dated April 10, 1999, from a union representative which states that

the agency actually removed the letter of warning in question in March,

1999, but that related documents remained in the file. Complainant has

not identified what related documents are at issue.

3 Nothing precludes complainant, however, from requesting that the

agency, in its discretion, include the letter of commendation in his

personnel file, notwithstanding that this is not required by the express

terms of the settlement agreement.