destroy and remove letter of reprimand (LOR) from a settlement agreement
A problem exists in that while the SA calls for destruction of LOR, the local office maintains records which have not been destroyed. In an example below, the complainant makes certain to mention ALL LOR including local files are to be removed and destroyed.
[A]ny local personnel file contained in either the Gold Clinic or Medical
Services will start new from the date of the signature of the agreement,
and the old personnel records will be pulled and destroyed.
On April 21, 2006, complainant informed the agency that he would like to
file a formal EEO complaint regarding the agency’s inclusion of points not
indicated in the settlement minutes in the written settlement agreement.
Specifically, complainant stated: destruction of all local personnel files maintained on complainant,
conflict with one another so they are void;
Robert W. Bendorf,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01200640131
Hearing No. 240-2005-000193X
Agency Nos. ARFTCAMP04NOV086352
d) Paragraph 12
This paragraph required the agency to destroy and remove a Letter
of reprimand (LOR) issued to complainant on February 19, 2004,
from his personnel files after two years from the date of issuance.
This LOR was issued to complainant for sending emails that were deemed
insulting, obscene, and inappropriate to his co-workers and others.
From December 2005, through April 2006, complainant sent a series of
emails to higher-level managers found to be disrespectful, insulting,
and inappropriate. On April 26, 2006, he was issued a written LOR,
which noted his February 2004, LOR but stated that it had not been used
to determine his penalty. Complainant contended that reference to his
February 2004, LOR was a breach of the SA. The agency argued that his
actions preceded the date for removal of the earlier LOR and that it
was not considered in determining his punishment.
The Commission’s regulations provide a process for complainants to
raise allegations that the agency breached a settlement agreement.
See 29 C.F.R. § 1614.504. The Commission is mindful that settlement
agreements are contracts between a complainant and the agency, and it is
the intent of the parties, as expressed in the agreement, that controls
the construction of the contract. Acree v. Department of the Navy, EEOC
Request No. 05900784 (October 4, 1990). In interpreting a contract, the
Commission looks to the language of the contract and to the intention of
the parties as expressed through the written agreement. Carroll v. United
States Postal Service, EEOC Request No. 05901072 (October 25, 1990).
In ascertaining the intent of the parties, the Commission relies on the
plain meaning of the words, and, if the document is plain and unambiguous
on its face, its meaning will be determined from the four corners of the
instrument without resort to extrinsic evidence. O’Farrell v. United
States Postal Service, EEOC Request No. 05910518 (September 25, 1991),
citing Montgomery Elevator v. Building Engineering Service, 730 F.2d 377
(5th Cir. 1984).
reference:
Stacey V. Nelson v. Department of the Navy
0120061718
10-24-06
.
Stacey V. Nelson,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120061718<1>
Agency No. 03-063285-004
Hearing No. 370-2004-00133x
