0120073073
09-13-2007
Terence C. Miller, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Terence C. Miller,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073073
Agency No. 4J-630-0032-07
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated June 20, 2007, finding that it was in
compliance with the terms of the February 15, 2007 settlement agreement
into which the parties entered. See 29 C.F.R. �� 1614.402, .405, &
.504(b).
Complainant was employed as a Casual Carrier at a Missouri facility of
the agency. On December 28, 2006, complainant was arrested following
an accident in his agency vehicle and, subsequently, he was removed
from agency employment. Complainant initiated contact with an Equal
Employment Opportunity (EEO) Counselor to allege discrimination regarding
his termination. On February 15, 2007, complainant and the agency
entered into a settlement agreement that provided, in pertinent part:
(1) [Complainant] will provide management official with proof of
expungement of record regarding incident of December 28, 2006;
(2) Management Official will review document(s) provided in connection
with (1) above, and will conduct an investigation of [complainant's] prior
job performance, behavior and conduct with former managers/supervisors;
(3) Based on information obtained pursuant to (1) and (2) above,
management official will reconsider [complainant's] eligibility and
suitability for consideration for future casual carrier vacancies;
(4) Upon completion of the review process recited above, management
official will advise [complainant] of its determination.
In late February 2007, complainant submitted documentation indicating
that his arrest was dismissed for payment of court cost. Subsequently,
the agency informed complainant that, due to his failure to satisfy the
terms for documentation in the settlement agreement, he would not receive
consideration for additional vacancies. By letter to the agency dated
April 27, 2007, complainant requested rehire and submitted documentation
indicating that the arrest records for December 28, 2006 were expunged
on April 24, 2007. On May 4, 2007, complainant initiated contact with an
EEO Counselor alleging that the agency breached the February 15 agreement
when it failed to consider him for rehire. The agency issued a final
decision on June 20, 2007, finding no breach.
In its June 20, 2007 final decision, the agency provided an investigative
affidavit from the management official who signed the February 15
agreement for the agency (S1). S1 stated that, during mediation,
complainant stated that the arrest records were already expunged and
that he would provide proof of his contention. S1 added that, in late
February 2007, complainant provided documentation of a dismissal on
payment of court cost rather than an expungement, which did not satisfy
the terms of the settlement agreement. S1 stated that the agency rendered
a decision based on the initial documentation submitted by complainant
and that decision is final. Also, the agency provided evaluations from
several agency supervisors, dated in March 2007, indicating that they
would not recommend complainant for re-employment. The agency concluded
that its managers acted in good faith in implementing the terms of the
settlement agreement. Complainant filed the instant appeal.
On appeal, complainant stated that he submitted preliminary documentation
for his expungement to keep the agency abreast of his actions in
attempting to satisfy the settlement agreement and that he did comply
with the agreement when he submitted his April 2007 documentation.
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 find that the "plain meaning" of the settlement
agreement of February 15, 2007 obligated the agency to review documents
provided to prove expungement of the December 2006 arrest records;
conduct an investigation of complainant's prior job performance,
behavior and conduct with former managers and supervisors; and
reconsider complainant's eligibility and suitability for consideration
for future casual carrier vacancies based on the aforementioned items.
The agency did not comply with all of these terms - it did not base its
reconsideration on the expungement documents that complainant submitted.
Complainant submitted proof of records expungement in April 2007 and
the settlement agreement did not specify a time-frame for complainant
to submit such documentation. Further, we note that he did so shortly
after it was issued. After a careful review of the record, we REVERSE
the agency's final decision and REMAND the matter to the agency for
specific implementation consistent with 29 C.F.R. � 1614.
ORDER
The agency is ordered to implement the terms of the settlement agreement
as follows:
To the extent that it has not already done so, the agency shall reconsider
complainant's eligibility and suitability for consideration for future
casual carrier vacancies based on provision (1) of the February 15,
2007 settlement agreement within 30 days of the date this decision
becomes final. The agency shall inform complainant of its determination
in accordance with provision (4) of the February 15, 2007 settlement
agreement within thirty (30) calendar days of its reconsideration for
eligibility and suitability.
If the agency has already conducted the above-ordered reconsideration,
it shall issue that determination within 30 days of the date this decision
becomes final.
The agency shall provide documentation supporting its actions in
accordance with this Order to the Compliance Officer as referenced below.
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 (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
September 13, 2007
__________________
Date
Date
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0120073073
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120073073