01A40828_r
04-08-2004
Pamela Peterson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Pamela Peterson v. United States Postal Service
01A40828
April 8, 2004
.
Pamela Peterson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40828
Agency Nos. 4E-990-0005-02; 4E-990-0013-01
DECISION
Complainant filed the present appeal with the Commission regarding her
claim that the agency breached the terms of the August 15, 2003 settlement
agreement into which the parties entered.
The pertinent part of the settlement agreement, paragraph (10),
provided that:
The agency will pay to Complainant as a lump sum the amount of
Twenty Thousand ($20,000.00) in settlement of her claim for back pay.
If Complainant believes that she has had additional losses in income
for the period of September 18, 2000, to July 25, 2003, Complainant
may submit proof of those losses to [Person A] within ten (10) days of
execution of this agreement. [Person A] shall review and verify or deny
such additional losses within a reasonable time.
The Agency will pay to Complainant the cash value of any loss of sick
leave and annual leave taken as a result of this complaint from September
18, 2000, to July 25, 2003. Complainant may submit proof of said leave to
[Person A] within ten (10) days of execution of this agreement, who will
review said proof and verify or deny such leave within a reasonable time.
The Agency will assign Complainant work as available at Benton City or
at Kennewick Station as near as possible to nine consecutive hours.
The Agency will offer Complainant the next available Level 11
Postmaster position within a 35 mile commuting distance from her home.
If Complainant rejects this offer, such rejection will have no effect
on Complainant's current position and her right under this agreement.
The Agency will pay Complainant's reasonable attorneys' fees upon
submission of the attorneys' statements of hours worked.
By letter to the agency dated September 23, 2003, 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 owed her an unspecified balance for attorney's
fees, additional back pay totaling $8,399.35, and money for unpaid sick
and annual leave totaling $5,853.00.
When the agency did not respond to her breach claim, complainant
submitted the present appeal. Complainant claims that under the
agreement the agency agreed to pay her a lump sum for loss of income
from September 18, 2000, through July 25, 2003. She states that she
subsequently submitted such proof showing that she was due $5,853.00 for
loss of sick and annual leave which she states was �verified correct�
by Person A. Complainant acknowledges that she was paid $20,000.00
on September 23, 2002, and $8,399.35 on November 17, 2003. However,
she claims that she is still owed a balance of $5,853.00. Additionally,
she states that the agency has not provided her work as near as possible
to nine consecutive hours at the Benton City or Kennewick Post Offices.
She claims that her schedule is the same schedule she worked prior to
the settlement agreement. Finally, complainant claims that the agency
has paid most but not all of the attorney's fees.
On January 20, 2004, the agency issued a final decision finding it did
not breach the terms of the August 15, 2003 settlement agreement. The
agency stated that it paid complainant $20,000.00 on September 23, 2003.
The agency stated that it paid complainant additional monies totaling
$8,399.35 on November 17, 2003, in accordance with the documentation of
additional losses she provided. The agency noted that complainant also
provided documentation showing the difference between leave earned and
leave that would have been earned had she worked full time during the
relevant period and computed such leave into a dollar figure of $5,853.00.
The agency stated that the settlement agreement provided complainant
would be reimbursed for leave taken at cash value. Thus, the agency
explained that since complainant did not indicate that any leave was
taken, none was paid in a cash value. The agency specified that the
$5,853.00 request was for leave not earned rather than for leave taken.
With regard to provision (10)(c), the agency claimed that a search for
hours has been done trying to find as near as possible to nine consecutive
hours at Benton City or Kennewick. The agency contends that to date
the hours are not available.
Finally, the agency states that it has paid $6,136.32 in attorney's fees.
The agency states that complainant is requesting attorney's fees that
were incurred post settlement which were not a part of the agreement.
The record contains a January 28, 2004 letter from complainant regarding
her breach of settlement claim. Complainant reiterates that she is due
$5,853.00, outstanding attorney's fees for an unspecified amount, and work
in Benton City or Kennewick as near as possible to nine consecutive hours.
The record contains a spreadsheet signed by complainant and submitted
by her on August 19, 2003. The spreadsheet is signed as received by
Person A on August 19, 2003, and �verified correct� by Person A on August
21, 2003. This spreadsheet lists �earned� sick and annual leave minus
�actual� sick and annual by calendar year leave and then lists total
hours owed by calendar year multiplied by a specified hourly rate by
calendar year for a total of $5,853.00 purportedly due to complainant
for loss of sick and annual leave.
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 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 present case, we find that complainant has failed to show that
the agency breached provision (10)(a) of the August 15, 2003 settlement
agreement. The agency contends and complainant acknowledges receipt of
$20,000.00 on September 23, 2003. The record reveals that complainant
requested payment for additional back pay totaling $8,399.35, which she
acknowledges she received on November 17, 2003. We find complainant
has failed to show that she is due $5,853.00 in additional losses.
Complainant alleges that she was due $5,853.00 as payment for lost
annual and sick leave. We note that although provision (10)(a) specifies
complainant may submit proof of �additional losses in income,� we find
lost annual and sick leave do not constitute lost income.
With regard to provision (10)(b), we find that complainant has failed to
show that the agency breached this provision. Under provision (10)(b),
the agency agreed to pay complainant the cash value of any loss of sick
and annual leave taken as a result of this complaint from September 18,
2000, to July 25, 2003. The agency acknowledges complainant submitted
a request for $5,853.00 for annual and sick leave for leave she would
have earned had she worked full time during the relevant period.
The Commission notes that the agreement did not require the agency
to pay complainant for additional leave she would have earned had she
worked full time during the relevant period. Since complainant fails
to identify specific sick and/or annual leave taken from September 18,
2000, to July 25, 2003, we find that she has failed to show a breach of
provision (10)(b).
With regard to provision (10)(c), we find there is insufficient
evidence in the record to determine whether the agency complied with
this provision. This provision provides that the agency will assign
complainant work as available at Benton City or Kennewick Station as near
as possible to nine consecutive hours. Although the agency claims that
it has searched for hours as near as possible to nine consecutive hours
at Benton City or Kennewick but no hours are available, we find that the
record contains no documentation of the agency's efforts to this extent.
Thus, we are unable to determine whether the agency complied with
provision (10)(c).
Finally, with regard to provision (10)(e), we find there is insufficient
evidence in the record to determine whether this provision has been
breached. According to provision (10)(e), the agency was required to pay
complainant reasonable attorney's fees upon submission of the attorney's
statement of hours worked. The agency claims that it paid $6,136.32 in
attorney's fees. Complainant claims that the agency failed to pay the
full amount of attorney's fees due. We note that the record fails to
include the statement(s) of hours worked by complainant's attorney or
the date(s) of submission to the agency. Further, the record contains no
evidence that the agency paid $6,136.32 in attorney's fees. Thus, we are
unable to determine whether the agency complied with provision (10)(e).
Accordingly, the agency's decision that it complied with provisions
(10)(a) and (10)(b) is AFFIRMED. The agency's decision that it complied
with provisions (10)(c) and (10)(e) is VACATED and these matters are
REMANDED to the agency for further processing in accordance with the
Order herein.
ORDER
The agency shall take the following actions:
Supplement the record with evidence indicating whether it has complied
with provision (10)(c), including documentation of its efforts to find
complainant work at Benton City or Kennewick Station as near as possible
to nine consecutive hours.
Provide documentation indicating whether it has complied with provision
(10)(e), including copies of the statement(s) of attorney's fees
submitted by complainant and evidence of payment(s) made by the agency
for attorney's fees.
Within 30 days of the date this decision becomes final, the agency shall
issue a decision determining whether the agency breached the terms of
the settlement agreement. A copy of the agency's decision must be sent
to the Compliance Officer 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
April 8, 2004
__________________
Date