01985223
08-10-2000
Henry Cabone, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Henry Cabone v. United States Postal Service
01985223
August 10, 2000
Henry Cabone, )
Complainant, )
) Appeal No. 01985223
v. ) Agency No. 1F933101496
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from the final agency
decision (FAD) dated June 15, 1998, in which the agency determined that
it had not breached a settlement agreement (SA) entered into March 21,
1997.<1> This timely<2> appeal is accepted in accordance with the
provisions of 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. � 1614.405).
ISSUES PRESENTED
The issues presented are: (1) whether complainant's allegation that
the agency breached the SA was raised in an untimely manner; and (2)
whether the agency violated the terms of its settlement agreement with
complainant.
BACKGROUND
The SA provided, in pertinent part, that:
In exchange for the promises made by the Agency...the Complainant agrees
not to institute a lawsuit...; and the Complainant hereby withdraws
all formal and informal EEOC Complaints filed before today's date on
the issue. The Complainant will refrain from filing any other complaints
on these same issues for the timeframes involved....
Complainant agrees to follow instructions from this point forward.
If all instructions are followed between today's date and April 30, 1997,
the letter of warning dated April 15, 1996 shall be removed from his OPF.
If all instructions are follow[ed] between today's date and August 30,
1997, the 7 day suspension dated April 30, 1996 shall be removed from
his OPF [Official Personnel Folder]. There will be no backpay.
The Complainant agrees that this settlement is without prejudice to
the 14 day suspension issued to the Complainant on Jan[uary] 2, 1997.
The Complainant agrees to not pursue a reduction of the 14 day suspension
based upon this EEOC settlement and/or the reduction of the prior
discipline.
The Agency agrees to provide a lump sum to the [Complainant], in the
amount of $400.00 minus taxes, for any overtime opportunities lost during
the first half of 1996. This will be processed by the local timekeeping
office.
By letter to the agency dated May 15, 1998, complainant alleged that
the agency was in breach of the SA. Specifically, complainant alleged
that the agency failed to remove an April 15, 1996 letter from his file,
which should have been removed in accordance with the SA. Because the
letter was in his file when it should not have been, it was then cited
in a September 10, 1997 Notice of Proposed Removal, and a May 13, 1998
Notice of Suspension.
In its FAD, the agency conceded that the April 15, 1996 letter was not
removed from complainant's file. It maintained, however, that it had not
breached the SA because complainant was not harmed by the existence of
the letter in his file. The agency found that complainant was not harmed
because the proposed removal was never implemented, and the suspension
was rescinded once the noncompliance with the settlement agreement
was brought to the agency's attention. The agency further asserted
that complainant did not raise his claim of breach in a timely manner.
The Notice of Proposed Removal was dated September 10, 1997, and the
Notice of Suspension was dated May 13, 1998. Complainant brought the
alleged breach to the agency's attention in a letter dated May 15, 1998.
Both of the disciplinary letters provided a space for complainant to sign
and date them to indicate his receipt. The record, however, indicates
that complainant did not sign and date either letter. This appeal
followed.
ANALYSIS AND FINDINGS
64 Fed. Reg. 37,644, 37,660 (1999)(to be codified at 29 C.F.R. �
1614.504(a)) provides that any settlement agreement knowingly and
voluntarily agreed to by the parties shall be binding on both parties.
That section further provides that if the complainant believes that the
agency has failed to comply with the terms of a settlement agreement,
the complainant shall notify the Director of Equal Employment Opportunity
of the alleged noncompliance with the settlement agreement within 30
days of when the complainant knew or should have known of the alleged
noncompliance. 29 C.F.R. � 1614.504(a). The complainant may request
that the terms of the settlement agreement be specifically implemented
or request that the complaint be reinstated for further processing from
the point processing ceased. Id.
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, and not
some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th
Cir. 1938). In reviewing settlement agreements to determine if there
is a breach, the Commission is often required to ascertain the intent
of the parties and will generally rely on the plain meaning rule.
Wong v. U.S. Postal Service, EEOC Request No. 05931097 (April 29, 1994)
(citing Hyon O v. U.S. 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, then its meaning must be determined from the
four corners of the instrument without any resort to extrinsic evidence
of any nature. Id. (citing Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984)).
In its FAD, the agency concluded that complainant did not bring the
alleged breach to the attention of the agency within 30 days of when he
knew or should have known of the alleged noncompliance. We believe that
the agency has not presented persuasive evidence to prove this assertion.
The agency has not demonstrated when complainant knew or should have
known of the September 10, 1997 Notice of Proposed Removal because the
document was not signed and dated by complainant to indicate receipt,
and there is no other document to demonstrate when complainant was made
aware of the Notice of Proposed Removal. Also, complainant notified the
agency of the alleged breach just two days after the date on the May 13,
1998 Notice of Suspension. The agency, therefore, has not demonstrated
that complainant contacted the agency about the alleged noncompliance
in an untimely manner.
Further, we disagree with the agency's assertion that they did not
breach the settlement agreement. The settlement agreement states that
if "all instructions are followed between today's date and April 30,
1997, the letter of warning dated April 15, 1996 shall be removed
from [complainant's] OPF." The record reveals that complainant did
comply with the SA. The agency did not, however, remove the April 15,
1996 warning letter, as evidenced by the fact that this document was
mentioned in the subsequent Notice of Proposed Removal and Notice of
Suspension. The agency even admits in the FAD that "it is clear from
the agreement that the letter of warning dated April 15, 1996 should
not have been cited in the proposed removal dated September 10, 1997
or the suspension notice dated May 13, 1998." The agency, therefore,
breached the settlement agreement.
The agency represented in its FAD that its breach of the SA was moot
because the Proposed Notice of Removal was not carried out, and the
suspension was rescinded once the noncompliance was brought to the
attention of management. We, however, find no evidence in the record
to demonstrate that the breach was cured. It is not evident from the
file that the agency, in fact, removed the April 15, 1996 letter of
warning from complainant's personnel file. Under these circumstances, the
Commission finds that there is insufficient evidence in the record for it
to determine whether or not the agency has cured its breach of the SA.
CONCLUSION
Based on the record in this case, we find that the agency's decision
was improper and it is REVERSED. The case is REMANDED to the agency
for further processing in accordance with the ORDER below.
ORDER
The agency is ordered to take the following actions within 30 days of
the date this decision becomes final:
1. If the agency has not done so already, the agency shall comply with
the terms of the March 21, 1997 settlement agreement between the agency
and appellant by removing the April 15, 1996 letter of warning from
appellant's OPF.
2. Whether the agency already has complied with the terms of March
21, 1997 settlement agreement, or whether it does so only on remand,
the agency shall submit a report of compliance to the Commission.
The report shall include supporting documentation, including documentary
and testimonial evidence, which demonstrates that the corrective action
has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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:
_08-10-00______ __________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
________________________
Date
1 On 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.
2 The agency did not supply a copy of a certified mail return receipt
or any other material capable of establishing the date complainant
received the FAD. Since the agency failed to submit evidence of the
date of receipt, the Commission presumes that complainant's appeal was
filed within thirty (30) days of receipt of the agency's final decision.
See 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �
1614.402(a)).