0120113787
10-26-2012
Neil A. Zuber, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Neil A. Zuber,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120113787
Agency No. 4E-800-0073-10
DECISION
Complainant filed a timely appeal with this Commission from a letter of determination by the Agency dated July 28, 2011, finding that it was in compliance with the terms of an October 26, 2010 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
During the period at issue, Complainant was an employee at an Agency facility in Grand Junction, Colorado.
On October 26, 2010, Complainant and the Agency entered into a settlement agreement to resolve a matter which Complainant pursued through the EEO Complaint process. The October 26, 2010 settlement agreement provided, in pertinent part, that:
In full settlement of all claims by the Complainant in this case against the Postal Service, the Postal Service agrees to pay the lump sum of $225.00. It is understood and agreed between the parties that this sum represents "wages" to the complainant, and will be subject to all the usual and customary income tax and other withholdings, and will be reported to the IRS in Form W-2. Complainant understands that the Postal Service will make all reasonable efforts to make payment within approximately eight (8) weeks after this settlement is fully executed.
That the complainant shall receive his salary check and earnings statement consistent with Article 9, SALARY CHECKS, Section (1) of the USPS-APWU Joint Contract Interpretation Manual dated June 2007.
By PS Form 2564-A "Information for Pre-Complaint Counseling" dated April 7, 2011, Complainant alleged breach. Specifically, Complainant alleged that on March 17, 2011 he stopped by the facility to pick up his check on his way home from vacation. However, a named Supervisor could not find the check. The Supervisor then called the Manager, Mail Processing Operations (Manager). However, the Manager did not respond. Complainant waited approximately twenty minutes, then continued his return home. Complainant stated that he was almost home, when a Supervisor called and said the Manager would get the check. Complainant stated that, at that point, he was tired, but that he would return to the work site in the morning. Complainant asserted that the Agency action was ". . .a breach of settlement 4E-800-0073-10. They are to be available Thurs of payweek after 5... [Manager] is playing her game again."
Further, Complainant alleged that on May 13, 2011, he requested his check earlier in his tour but did not receive it until after 10:45 p.m. Complainant alleged that his checks should be available for pickup after 5:00 p.m. on Thursdays.
In its July 28, 2011 letter of determination, the Agency found no breach. The Agency stated that the Manager stated that she was not aware that Complainant would be stopping by the facility on March 17, 2011, because Complainant was on leave. The Manager stated that once she learned that Complainant had stopped by the facility to pick up his check, she attempted to make arrangements to get Complainant's check to him by either coming back to the facility or meeting him at some other location with his check. The manager stated, however, Complainant declined her offer and stated that he would stop by the facility the next day to pick up his check.
With respect to Complainant's allegation that he did not get his check in a timely manner on May 13, 2011, the manager stated that although Complainant did not receive his check when he asked for it earlier in his tour, it was provided to him later in the same tour.
Further, the Agency stated that Article 9 of the USPS-APWU Joint Contract Interpretation Manual (JCIM) allows, but does not mandate, that checks be distributed on a date other than the printed check date under certain conditions. Specifically, the Agency states that Section (1) of Article 9 of the JCIM states "salary checks generally are distributed on the date printed on the salary check. If they are available at the employee's pay location, salary checks and earnings statements can be distributed on a date other than the salary check date under the following conditions: (1) After local banks close on Thursday, to employees whose regular tour of duty ends after local banks close on Friday; or...(2) At the end of the employee's tour on Thursday, to those employees who are not scheduled for duty on a Friday payday or are scheduled for leave on a Friday payday..."
The Agency determined that in applying section (1) of Article 9, Complainant's regular tour begins at 4:00 p.m. and ends at 12:30 a.m. on Friday, with Tuesday/Wednesday scheduled off days. The Agency further determined that the JCIM provides that Complainant's check may be distributed any time between 5:00 p.m. on Thursdays proceeding a payday and by 11:59 p.m. on the printed check date.
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).
In the instant case, we discern no breach of the instant agreement. We note that the settlement agreement merely states that Agency management agreed to pay Complainant a lump sum payment in the amount of $225.00, and to assure that Complainant gets his check and earnings statement consistent with Section (1) of Article 9 of the JCIM.
The record contains a copy of the Manager's affidavit. Therein, the Manager stated that on March 17, 2011, a supervisor contacted her saying that Complainant stopped by the facility on his way home from vacation to pick up his check but she was unable to locate it. The Manager stated at that time she was on her way to Foresight [Colorado] and "indicated I would be there in 10-15 minutes. [Supervisor] indicated that [Complainant] had already left the facility. I asked her to contact him to let him know I was on my way there now. I even offered to meet him in between if it was more convenient. She called back and told me that [Complainant] said he would pick them up tomorrow." The manager further stated that Complainant was on scheduled leave and "did not make any arrangements to pick up the checks or give notification that he would be stopping by at a specific time to pick up the checks."
With respect to Complainant's allegation that on May 13, 2011, he requested his check early in his tour but was not provided it until 10:45 p.m., the manager stated that she was not involved in providing Complainant his paycheck on that day. The manager further stated measures to prevent the delay of paychecks from happening in the future have been implemented. Specifically, the manager stated "in an effort to improve distributing the paychecks, we have purchased a combination lock box to place the paychecks once they arrive so any EAS employee can distribute the paychecks. The lock box will be at the supervisor stand-up desk."
Accordingly, we AFFIRM the Agency's finding of no breach of the October 26, 2010 settlement agreement.
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 (S0610)
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 (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 26, 2012
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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