01992149
01-26-2001
James A. Funderburke, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
James A. Funderburke v. United States Postal Service
01992149
January 26, 2001
.
James A. Funderburke,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01992149
Agency No. 4D-280-0039-98
DECISION
Complainant filed the instant appeal with this Commission from a final
decision by the agency dated September 28, 1998, finding that it was in
compliance with the terms of the February 13, 1998 settlement agreement
into which the parties entered. The settlement agreement provided,
in pertinent part, that complainant would �receive back pay, equal to
the average hours made by the PTF's at the Tokay station from January
3, 1998, through February 13, 1998.� By letter to the agency dated
August 10, 1998, complainant alleged that the agency was in breach of
the settlement agreement, and requested that the agency reinstate his
complaint. Specifically, in an investigative affidavit dated August 18,
1998, complainant alleged that he was not completely paid, as 48 of the
288 �straight-time� hours he was compensated for �were supposed to be
overtime.� In its September 28, 1998 decision, the agency concluded
that the settlement was not breached, as overtime pay was not a part of
the settlement agreement.
Upon review of the record, we find that complainant has not shown an
agency breach of the settlement agreement. While complainant asserts his
back pay should include 48 hours of overtime, no reference to overtime
payment as part of complainant's back pay can be found within the four
corners of the agreement. If complainant wanted such a benefit from
the agreement, he should have specifically included a term providing
him with compensation for overtime hours.
Accordingly, as complainant has failed to show that the agency has
breached the settlement agreement, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
January 26, 2001
__________________
Date