01974322_r
10-06-1999
Steve J. Martin, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Steve J. Martin, )
Appellant, )
) Appeal Nos. 01974322
) 01981427
v. ) Agency No. 4-G-752-1049-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant timely filed an appeal from the final agency decisions finding
no breach of his settlement agreement. See 29 C.F.R. ��1614.504, .402(a);
EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue presented is whether the agency complied with the terms of a
January 17, 1995 settlement agreement.
BACKGROUND
On December 27, 1994, appellant filed a formal EEO complaint alleging that
he had been subjected to unlawful discrimination in reprisal for his prior
EEO activity. Appellant and the agency settled the complaint on January
17, 1995. The settlement agreement provided, in pertinent part, that:
[Appellant's] name will be sent to [the agency Maintenance
Supervisor] effective immediately to be added to the training list.
Every effort will be made to send [appellant] to the next CFC training
class. . . . [Appellant] will also be added to the list for vehicle
maintenance training.<1>
By letter dated February 19, 1995, appellant alleged that the agency
breached the settlement agreement. Appellant contended that he was told
by the Maintenance Supervisor that the only training he would receive
was a three (3) hour session with a VOMA clerk.
In its final decision dated April 13, 1995, the agency found that it
did not breach the settlement agreement. The agency asserted that
appellant's name was on the list for CFC training, and that appellant
already received vehicle maintenance training.
Appellant timely appealed the agency's April 13, 1995 decision
(FAD-1) to the Commission. By a decision dated November 5, 1996,
the Commission found insufficient evidence in the record to support
the agency's findings. Therefore, the Commission remanded appellant's
allegations of breach for a supplemental investigation . See Martin
v. United States Postal Service, EEOC Appeal No. 01954599 (Nov. 5, 1996).
The Commission also ordered the agency to issue a new final decision
based on the evidence obtained in the supplemental investigation. See id.
On March 26, 1997, the agency issued a second final decision (FAD-2),
again finding no breach of the settlement agreement. Specifically,
the agency found that an affidavit from an instructor (W1), and records
gathered in the supplemental investigation, revealed that appellant
received CFC training. The agency also found that, based on a handwritten
note from a VOMA clerk (W2), appellant also received vehicle maintenance
training.
On April 30, 1997, appellant timely appealed FAD-2 to the Commission
(EEOC Appeal No. 01974322). Inexplicably, the agency issued another
decision on October 30, 1997 (FAD-3), again finding no breach of the
settlement agreement. In FAD-3, the agency reiterated the findings
of FAD-2, and also found that appellant admitted to an EEO Counselor
that he received the training described in the settlement agreement,
but refused to complete an affidavit to that effect. Appellant filed
another appeal on December 8, 1997 (EEOC Appeal No. 01981427).<2>
Appellant contends on appeal that he only received a part of the CFC
training to which he was entitled. Appellant claims that the comparative
employees listed in appellant's underlying complaint all received two (2)
sections of CFC training, while appellant only received one (1) section
of training. Appellant denies informing a counselor that he received
the training described in the settlement agreement, and contends that
he was never asked to complete an affidavit. Appellant admits that
he spent several hours with W2, but argues that he never received any
vehicle maintenance training. Appellant notes that his training records
do not include any mention of vehicle maintenance training.
The record includes an affidavit from W1, which states that appellant
received CFC training on July 1, 1996. The record contains a handwritten
note, purportedly from W2, which states that W2 gave appellant one
day of vehicle maintenance training. The record also contains a
copy of appellant's training records, which reveal that appellant
received training on, inter alia �CFC's and the ozone layer.� Further,
the record contains appellant's certification for the �Refrigerant,
Recovery, Reclaim, and Recycle Program,� dated July 1, 1996. However,
appellant's training records do not mention vehicle maintenance training.
The record also does not contain any statement from appellant or a
counselor that appellant received the training outlined in the January
17, 1995 settlement agreement.
ANALYSIS AND FINDINGS
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. In addition, 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 (Dec. 9, 1996).
The Commission has consistently held that settlement agreements are
contracts between appellant and the agency, and 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. See Hyon
v. United States Postal Service, EEOC Request No. 05910787 (Dec. 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 present case, the Commission finds that appellant received CFC
training as provided in the settlement agreement. The agreement does
not specify any particular sections of CFC training to be given to
appellant. If appellant wished to attend specific sections or parts of
CFC training, or the same training that was provided to other employees,
then appellant should have negotiated to have such provisions included
within the settlement agreement. The January 17, 1995 settlement
agreement provided that every effort would be made to sent appellant
to the next CFC training class. The record indicates that appellant
received CFC training. Accordingly, the agency has not breached the
CFC training provisions of the settlement agreement.
Regarding vehicle maintenance training, however, the Commission finds
insufficient evidence to support the agency's findings. The handwritten
note from W2 is not a sworn statement made under oath, and is not
supported by appellant's training record, or any other evidence of record.
Therefore, the Commission finds that appellant has not received vehicle
maintenance training as provided in the settlement agreement. Further,
there is no evidence in the record that appellant's name was placed on
a list to receive such training.<3> Accordingly, the agency breached
the settlement agreement with regard to vehicle maintenance training.
The Commission finds that the most appropriate remedy for the agency's
breach is specific implementation of the breached portion of the
agreement. Therefore, the Commission shall order the agency to enroll
appellant in the next available vehicle maintenance training class. 29
C.F.R. �1614.504(c).
CONCLUSION
Accordingly, the agency's decision is AFFIRMED with respect to CFC
training. However, the agency's decision with respect to vehicle
maintenance training is REVERSED. The agency shall take the actions as
directed in the Order below.
ORDER
The agency is ORDERED to enroll appellant in the next vehicle maintenance
training course offered, and, if such course is no longer offered, to
enroll appellant in the next comparable class offered. The agency shall
inform appellant by letter of his enrollment in the class. A copy of an
agency letter to appellant informing him that the agency is enrolling him
in training in compliance with this Order shall be sent to the Compliance
Officer referenced herein.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. �1614.501 (e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. �1614.501 (e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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. 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 (Z1092)
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:
October 6, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The Commission notes that �CFC� refers to chlorofluorocarbons, a
type of chemical once used as a refrigerant in a variety of products,
including refrigerators and air conditioners.
2The Commission will address EEOC Appeal Nos. 01974322 and 01981427
herein, pursuant to its discretion to consolidate multiple complaints of
discrimination from the same complainant for joint processing. See 29
C.F.R. �1614.606.
3Given that the Commission has made five separate requests for a complete
copy of the case file from the agency, and the agency has failed to
comply, any matter not supported by the record will be construed against
the agency in the present decision.