agency did not share his investigation file and did not destroy or remove negative
Tom J. Martin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083332
Agency No. 4E-590-1030-94
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final decision (FAD) by the
agency dated June 20, 2008, finding that it was in compliance with
the terms of the August 25, 1995 settlement agreement into which the
parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b);
and 29 C.F.R. § 1614.405.
The August 25, 1995, settlement agreement provided, in pertinent part,
that:
(1) The parties agree…to keep confidential the terms and conditions
of this settlement agreement. The parties agree…to keep confidential
the information herein and not to disclose said information to any
third party other than through legal counsel or as authorized within
or by this settlement agreement. This settlement agreement will be
kept confidential and the terms will not be disclosed by either party,
except to the extent required by this settlement agreement and to those
authorized Postal Service officials needed or responsible for honoring
and implementing the terms of this settlement agreement.
(3) It is agreed and understood by the undersigned that this
settlement agreement and the resolution of the matters that this
settlement agreement encompasses…may not be cited as precedent in
any other proceeding or in any other forum. However, this settlement
agreement may be cited to prove its existence and to establish that the
matters that this settlement agreement encompasses have been settled.
(6) …(g) Any other documents related to any of the above referenced
EEOC complaints or related to any issue contained herein, that are
negative or reflect unfavorably upon the complainant, including the letter
of decision dated July 11, 1994, will be withdrawn from complainant’s
official personnel folder (OPF) and be destroyed….
The settlement also provided attorney fees, payment to a doctor for
services rendered, a saved grade, the withdrawal of a letter of warning
and performance improvement plan, and the restoration of 1,000 hours
of sick leave to complainant. By letter to the agency dated November
17, 2005, complainant alleged that the agency breached the settlement
agreement, and requested that the complaints it closed be reinstated.
Specifically, complainant alleged that during a deposition on October 26,
2005, an agency attorney questioned him about the nature of his settled
EEO complaints, the settlement agreement, and the personnel actions
that led to his EEO complaints in 1994.1 He also suggested that not all
documentation referenced in the settlement agreement had been withdrawn
from his OPF, as agreed.
Complainant previously filed an appeal concerning this alleged breach. The
Commission ruled that the record was insufficient to allow a determination
on breach, and remanded the matter for a supplemental investigation and
issuance of a new final agency decision on breach. Martin v. United
States Postal Service, EEOC Appeal No. 0120061394 (May 22, 2008).
On remand, the agency provided the EEOC’s Compliance Officer with a
copy of the deposition and deposition exhibits, an affidavit by Human
Resources Generalist regarding her review of complainant’s OPF, and a
FAD dated June 20, 2008, finding no breach.
Complainant timely appealed the FAD. In finding no breach, the FAD found
that deposition questioning did not breach the settlement agreement.
It reasoned that the purpose of the contested questioning was to gain
an understanding of complainant’s past EEO activity to ascertain whether
the responsible management officials were aware of the activity.2
On appeal, complainant argues that the agency violated the settlement
agreement when its attorney questioned him in the deposition about the
nature of his settled EEO complaints, the settlement agreement, and
the personnel actions that led to his EEO complaints in 1994. He also
writes that subsequent to his receipt of the FAD, he reviewed his OPF and
discovered negative information which violates the settlement agreement.
Specifically, item 79 of a July 1994 PS Form 50 has the entry “INVOL
REASSIGN-CHG TO LL.”
In opposition to complainant’s appeal, the agency argues that questioning
during the deposition did not violate the settlement agreement because
the questions about EEO activity were proper since complaint alleged
reprisal discrimination. It avers that it is specious to contend that
complainant can invoke reprisal as a basis of litigation and prevent the
agency from establishing the basis of the EEO activity. It previously
argued that the deposition questioning did not disclose the settlement
terms to a third party since the only people present at the deposition
were complainant, his representative, the agency attorney, and the court
reporter, and complainant’s representative did not object to the contested
line of questioning. In opposition to the appeal, the agency further
argues that the PS Form 50 to which complainant refers is part of his
official salary history and cannot be deleted from the OPF.
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).
Contrary to complainant’s claim, the settlement agreement does not
prohibit questioning about the EEO matters the settlement agreement
resolved, nor even its use in another proceeding to show information
about prior EEO activity. Rather, the settlement language provides
“it is agreed and understood by the undersigned that this settlement
agreement, and the resolution of the matters that this settlement
agreement encompasses…may not be cited as precedent in any other
proceeding….” We will assume without deciding that this language
refers to information about the EEO claims, not just their resolution.
Nevertheless, complainant still has not shown that the alleged disclosure
of information about the EEO claims would be a breach. This was solicited
because it was relevant to his claim that he was retaliated against for
prior EEO activity, not to cite as a precedent. Complainant does not
contend nor show it was cited as a precedent.
However, with specified limitations, the settlement agreement does require
that its terms and conditions be kept confidential. In response to
a deposition question about whether the settlement agreement provided
compensatory damages, complainant responded no. In response to an inquiry
about his downgrade, complainant explained the matter was settled with
his being returned as a supervisor. Only the first inquiry elicited
information about the settlement agreement. The other referenced
question could have been answered without reference to the settlement
agreement.
We find that the first inquiry did not amount to a disclosure to a
third party breaching the settlement agreement. First, as argued by the
agency, it occurred at a deposition where there were no third parties.
Given the nature of discovery, it was incumbent on complainant to remind
the agency attorney of the 10 year old settlement agreement and his belief
that questions about its terms would result in an improper disclosure.
He did not do so. Being under oath, as complainant asserts, was not a
reason to stay silent on the matter. Finding this inquiry was a breach
under this circumstance would be inequitable.
Complainant also avers that open ended deposition discovery questions
about his discipline history and nature thereof violated the settlement
agreement because this resulted in the solicitation of information about
his demotion. The demotion was effected by the July 11, 1994, letter that
per the settlement agreement was to be withdrawn from complainant’s OPF
and destroyed. We rule that the discovery questions about complainant’s
past discipline do not amount to a breach of the settlement term requiring
the removal of the above letter from the OPF and its destruction.
Finally, complainant avers that he reviewed his OPF and discovered
negative information which violated the settlement agreement.
Specifically, item 79 of a July 1994 PS Form 50 has the entry “INVOL
REASSIGN-CHG TO LL.” The agency does not contend this is unrelated to
an EEO complaint closed by the settlement.3 Rather, it argues that the
PS Form 50 to which complainant refers is part of his official salary
history and cannot be deleted from the OPF.
We agree with complainant that the item 79 reference is negative.
It refers to an involuntary demotion. The agency does not explain why
it cannot maintain complainant’s official salary history and at the same
time simply delete the word involuntary. We find that this reference
breaches the settlement agreement.
Complainant’s request for reinstatement of his complaints as remedy
is denied. Reviving and processing complaints which are circa 1995
that have been closed for some 13 years is impractical. Moreover, the
settlement agreement provides that neither party will seek to set the
settlement aside over a dispute which arises over its implementation,
and complainant may only seek enforcement. Given the time that has
passed, and the nature of the breach, and the language of the settlement
agreement, enforcement is the most appropriate remedy. Accordingly,
the agency shall comply with the order below.
On appeal, complainant complained that the agency did not provide the
entire compliance report with supporting documentation it sent the EEOC
pursuant to the order in EEOC Appeal No. 0120061394. Specifically,
complainant writes that the agency only sent him an excerpt of the
deposition, and did not include the deposition exhibits. The agency
concedes that it only sent complainant an excerpt of the deposition,
but argues that it gave him the relevant portion and he had access to
the rest in connection with the litigation in complaint 4E-890-0014-05.
The implementation directive in EEOC Appeal No. 0120061394 required
the agency to provide the EEOC a compliance report with supporting
documentation, and send a copy of all submissions to complainant.
The agency did not do so. Accordingly, the agency is ordered to do
so below.
ORDER
The agency shall:
1. Purge and destroy the July 1994 PS Form 50 in complainant’s OPF which
on item 79 contains the entry “INVOL REASSIGN-CHG TO LL.” The agency
may substitute a form that contains an item 79 entry of “REASSIGN-CHG
TO LL,” or other language that is not negative.
2. The agency shall provide complainant with a complete copy of the
compliance report with all supporting documentation it provided the EEOC
pursuant to the order in EEOC Appeal No. 0120061394.
The agency shall complete the above actions within 60 calendar days
after this decision becomes final.
ATTORNEY’S FEES (H0900)
If complainant 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 (K0408)
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 (M0408)
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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 19, 2008
__________________
Date
1 The deposition occurred as part of the discovery process in another,
unrelated EEO complaint filed in 2005. He alleged reprisal for prior
EEO activity when he was not selected for a position in November 2004.
The complaint number was 4F-890-0014-05, and the hearing number was
340-2005-0014-05.
2 Complainant moved for sanctions, arguing that the questioning
was improper. In hearing case number 340-2005-00620X, the AJ denied
the motion, finding that the questions were within the proper scope
of deposition discovery because complainant was alleging reprisal
discrimination, and the terms of the settlement did not preclude the
agency attorney from questioning complainant about his prior EEO activity.
However, the AJ advised complainant of his right to separately make an
allegation of breach under 29 C.F.R. § 1614.504 and have it processed.
3 The record does not contain copies of the complaints closed by the
settlement agreement, or the acceptance letters or like documentation
on these complaints.
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0120083332
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083332
