Jeffrey W. Tam, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 7, 2005
01a54464_r (E.E.O.C. Oct. 7, 2005)

01a54464_r

10-07-2005

Jeffrey W. Tam, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Jeffrey W. Tam v. United States Postal Service

01A54464

October 7, 2005

.

Jeffrey W. Tam,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A54464

Agency No. 1F-946-0063-04

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated May 19, 2005, finding that it was in

compliance with the terms of a September 2, 2004 settlement agreement.

See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �

1614.405.

The September 2, 2004 settlement agreement provided, in pertinent part,

that the agency agrees:

Within thirty (30) days of the signing of this agreement, it will make

a pay adjustment for [complainant] in the amount of eight (8) hours of

overtime pay and eight (8) hours of penalty overtime.

By letter to the agency dated February 8, 2005, complainant claimed

breach. Specifically, complainant alleged that the agency did not pay

him 8 hours of overtime pay and 8 hours of penalty overtime.

In its May 19, 2005 final decision, the agency found no breach.

The agency stated that an inquiry into complainant's breach claim

indicated that on March 2, 2005, an adjustment to pay complainant for

8 hours of overtime and 8 hours of penalty overtime was processed.

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).

In the instant case, the Commission determines that the record in

this case contains insufficient evidence for us to determine whether a

breach of the instant settlement agreement has occurred. We note that

the record contains a copy of Pay, Leave, or Other Hours Adjustment

Request (PS Form 2240) dated March 2, 2005. Therein, an Adjustment

Clerk requested that the agency's Scanning and Imaging Center in Sioux

Falls, South Dakota pay complainant 8 hours of overtime and 8 hours

of penalty overtime, pursuant to the terms of the instant agreement.

However, the record contains no evidence that complainant was actually

paid 8 hours of overtime and 8 hours of penalty overtime. Given this

lack of evidence, we are unable to ascertain whether the agency complied

with the settlement agreement. Accordingly, the agency's finding of no

breach of the settlement agreement is VACATED. This matter is REMANDED

to the agency for further processing in accordance with the ORDER below.

ORDER

The agency is ORDERED to take the following action:

The agency shall supplement the record with evidence clearly showing

that it has complied with the terms of the settlement agreement. The

supplementation of the record shall include any documentation, such as

a pay statement or an affidavit, from the agency's Adjustment Clerk,

indicating whether complainant was paid 8 hours of overtime and 8 hours

of penalty overtime. Within thirty (30) calendar days of the date this

decision becomes final, the agency shall issue a new decision concerning

whether it breached the September 2, 2004 settlement agreement.

A copy of the agency's new decision must be sent to the Compliance

Officer as referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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 (M0701)

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

(R0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

October 7, 2005

__________________

Date