01a42662
02-22-2005
Ronald Miller, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Ronald Miller v. United States Postal Service
01A42662
February 22, 2005
.
Ronald Miller,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A42662
Agency Nos. 4F-926-0179-97, 4F-926-0013-97, 4F-926-0095-97, 4F-926-0138-97
DECISION
Complainant filed a timely appeal with this Commission concerning
the agency's compliance with the terms of a July 15, 2003, settlement
agreement. The Commission accepts the appeal. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
complainant would be reinstated to his position as a letter carrier;
(2) the agency would agree to restore 520 hours of sick leave; and
the agency would restore complainant's annual leave that he would have
accrued from the effective date of his termination to the date of the
execution of the agreement.
By letter to the agency dated December 15, 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 failed to pay him annual leave and 520 hours
of sick leave. Further, complainant requested leave without pay (LWOP)
from July 15, 2003, to the present, to have his health benefits and life
insurance reinstated and to be paid $5000.00 in compensatory damages.
The agency failed to respond and complainant filed the instant appeal.
Complainant makes no new contentions on appeal. The agency merely
states that �[c]omplainant's leave was restored.� The agency submitted
a Notification of Personnel Action indicating that it would �[r]estore
sick leave hours� and �restore accrued annual leave as if [his] service
had been uninterrupted.�
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).
Initially, with respect to complainant's request to be paid LWOP from July
15, 2003, to the present, to have his health benefits and life insurance
reinstated, and to be paid $5,000.00 in compensatory damages, a review
of the settlement agreement reveals that there are no provisions in the
settlement agreement for complainant to be paid any LWOP, to have his
health benefits and life insurance reinstated or to be paid $5000.00
in compensatory damages. Further, complainant does not contend that
the agency was obliged to perform these actions as a part of his being
reinstated to the mailhandler position. We find that complainant has
failed to show that the agency was obliged to pay him LWOP, reinstate his
health and life insurance or to be paid $5,000.00 in compensatory damages.
A review of the record fails to reveal any evidence to show that the
agency complied with provisions (2) and (3) of the settlement agreement.
The Notice of Personnel Action shows that the agency ordered that
complainant be restored sick leave and annual leave as if his service
had been uninterrupted. However, the record does not demonstrate that
complainant's leave balances actually were increased. We find that the
record contains no evidence to confirm that the agency undertook the
actions described in its response. The Commission has long held that
the agency bears the burden of submitting evidence to substantiate its
putative denial of complainant's request for compliance with a settlement
agreement. Lacking this evidence, we cannot conclude that the agency
complied with provisions (2) and (3) of the settlement agreement.
See Marshall v. Department of the Navy, EEOC Request No. 05910685
(September 6, 1991).
Accordingly, this matter is REMANDED to the agency for further processing
in accordance with the ORDER below.
ORDER
The agency shall take the following action:
1. Not later than thirty (30) days from the date on which this decision
becomes final, if it has not done so already, the agency shall credit
complainant 520 hours of sick leave and any annual leave he would have
accrued from the effective date of his termination to July 15, 2003; and,
2. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of
the agency's crediting of complainant's sick leave and annual leave,
including evidence that the corrective action has been implemented.
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
February 22, 2005
________________
Date