Kirk Caldwell, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionOct 3, 2011
0120112881 (E.E.O.C. Oct. 3, 2011)

0120112881

10-03-2011

Kirk Caldwell, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.




Kirk Caldwell,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service,

(Southeast Area),

Agency.

Appeal No. 0120112881

Agency No. 4H300006811

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the Agency dated April 28, 2011, finding that it was

in compliance with the terms of the 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.

BACKGROUND

Believing that the Agency subjected him to unlawful discrimination,

Complainant contacted an Agency EEO Counselor to initiate the EEO

complaint process. On February 15, 2011, Complainant and the Agency

entered into a settlement agreement to resolve the matter. The settlement

agreement provided, in pertinent part, that:

(1) By February 17, 2011, a pay adjustment will be initiated to pay

[Complainant] one hour of overtime worked on November 12, 2010.

By letter to the Agency dated February 27, 2011, Complainant alleged that

the Agency was in breach of the settlement agreement, and requested that

the Agency specifically implement its terms. Specifically, Complainant

alleged that the Agency failed to pay him for the hour of overtime.

In its April 28, 2011 FAD, the Agency concluded it was not in breach

of the agreement. The Agency stated the pay adjustment was initiated

on March 1, 2011, once the oversight was brought to management’s

attention. The Agency noted that the form submitted was incorrect and

had to be reworked and resubmitted for payment, and as a result, payment

was taking longer than anticipated. The Agency submitted copies of the

pay adjustment request. The form was signed by Complainant as well as

management. However, in his appeal brief, Complainant states that as of

June 25, 2011, he still had not been paid.1

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).

In the instant case, the Commission finds that given Complainant’s

statement that, as of June 25, 2011, he has not been paid monies owed,

the Agency is in breach of the agreement. While the Agency submitted

forms showing that the request was being processed, the Commission

notes there is nearly two months between the date of its decision and

Complainant’s assertion that he still had not been paid.

As such, the Commission finds there was a breach and REMANDS the matter

to ensure Complainant is paid the amount agreed upon.

ORDER

The Agency is ordered to take the following action:

1. Within thirty (30) days of the date this decision becomes final,

the Agency shall ensure that Complainant is paid for the one hour of

overtime worked on November 12, 2011, or prove that such payment has

already been made.

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

October 3, 2011

__________________

Date

1 Complainant raises numerous other claims in his brief that are not

related to the instant settlement agreement. He should raise any new

claims with an EEO counselor.

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0120112881

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120112881