0120143001
01-14-2015
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120143001
Agency No. 4G-330-0128-14
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated July 31, 2014, finding that it was in compliance with the terms of an April 24, 2014 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On April 24, 2014, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been pursued through the EEO complaint process. The settlement agreement provided, in pertinent part, that:
The Counselee will be made whole for all pay and benefits lost during the period she was out on 16.7. The Counselee will also be paid 8 hrs at the overtime rate. This also resolves all grievances pertaining to the 16.7 issue.
By letter to the Agency dated June 24, 2014, Complainant alleged breach. Specifically, Complainant alleged that the Agency has not paid her for the period she was out "on 16.7." Complainant stated that she and her union representative submitted the requisite paperwork on three separate occasions "because of [a named Manager's] inability or unwillingness to find out how to do it properly in the first place."
In its July 31, 2014 final decision, the Agency found no breach. The Agency stated that the Manager had determined that the 16.7 period for which Complainant was to receive back pay was from February 12, 2014 through March 7, 2014. The Manager found that the submitted pay adjustment paperwork had been returned back to him for various reasons, such as missing information and/or lack of district-level approval. Further, the Manager stated that as of July 7, 2014, Complainant was required to correct items on Forms 8038 and 8039 in order for the Agency to process the payment.
Moreover, the Agency determined that although there was a processing delay, a pay adjustment was eventually processed, and a check dated July 22, 2014 was sent to Complainant, in the amount of $2,761.13.
The record contains a copy of the Manager's affidavit dated July 7, 2014. Therein, the Manager stated that "as of 7/07/14 [Complainant] has to correct items on Form 8038 and 8039. Upon completion will be emailed as per instructions."
The record also contains a copy of the Accounting Technician's e-mail dated July 23, 2014, to the Manager. Therein, the Accounting Technician stated that the back pay award for Complainant "has been completed. The check has been mailed to: [Complainant, provided address in Miami, Florida].
However, on appeal, Complainant argues that she has not yet received the back pay check. Complainant states that since she alleged breach of the instant agreement, she had to submit paperwork two more times "making it five (5) total times! The paperwork would probably still be pending if [the named Manager] had not gone on vacation in July [2014]. The fourth time it was submitted, it was returned while [Manager] was gone. It was then handled by [Agency official]. In the matter of one (1) day, it was resubmitted. He talked to the payroll office in Eagan, MN, and the process was started for payment. According to the letter from [Regional Manager] dated July 31, 2014, the check for my back pay was dated 7/22/14 and I have received payment. Well, this too is wrong!! As of today's date, August 21, 2014, I still have not received my back pay in the amount of $2,761.13. The check may have been cut, but I don't have the money."
The instant appeal followed.
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. 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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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).
Upon review, we are unable to determine whether the Agency has complied with the April 24, 2014 settlement agreement. According to the agreement, the Agency was to pay Complainant back pay for the period she was out on 16.7. We acknowledge that the Accounting Technician states a check in the amount of $2,761.13 was sent to Complainant on July 22, 2014. However, there is no evidence in the record indicating that Complainant actually received the check. As such, we shall remand this matter to the Agency for evidence showing whether it has complied with the subject settlement agreement.
Accordingly, the Agency's final decision is REVERSED and the matter is REMANDED to the Agency for a supplemental investigation in accordance with the ORDER herein.
ORDER
Within sixty (60) days from the date this decision becomes final, the Agency is ORDERED to take the following action:
1. The Agency shall supplement the record with affidavits and/or documentary evidence indicating actual receipt by Complainant of the back pay at issue.
2. The Agency shall issue a new final decision regarding whether it is in compliance with the April 24, 2014 settlement agreement.
A copy of the Agency's supplemental investigation and new final decision shall be provided to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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
January 14, 2015
__________________
Date
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0120143001
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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