A. Carol Ferguson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 8, 2004
01A44200_r (E.E.O.C. Nov. 8, 2004)

01A44200_r

11-08-2004

A. Carol Ferguson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


A. Carol Ferguson v. United States Postal Service

01A44200

November 8, 2004

.

A. Carol Ferguson,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A44200

Agency No. 1B-121-0001-04

DECISION

Complainant filed a timely appeal with this Commission from a final

decision by the agency dated April 29, 2004, finding that it was in

compliance with the terms of the January 6, 2004 settlement agreement

into which the parties entered.

The settlement agreement provided, in pertinent part, that:

AWOLS and associated negative hours are to be removed as per the attached

documentation. This should remove all AWOLS hours.

Reimbursement to [complainant] for wages for the period of September

14, 2003 - November 17, 2003, including night differential and Sunday

premium.

Holiday reimbursement to [complainant] for Columbus Day 2003 and Veteran's

Day 2003.

TSP reimbursement at rates in effect during the September 14, 2003 -

November 17, 2003 time record, including reimbursement for compounding

interest.

[Person A] agrees to present documentation needed to initiate these

actions to [Person B] no later than January 9, 2004.

Documentation will be provided to [complainant] from HR Department

indicating actions completed and paperwork submitted to appropriate

processing center within 15 days of agreement date.

In a letter postmarked April 12, 2004, complainant alleged that the agency

was in breach of the terms of the January 6, 2004 agreement and requested

reinstatement of her EEO complaint. Specifically, complainant alleged

that it has been over ninety days since the agreement was entered into

and no information has been given to her. Further, complainant stated

that on April 7, 2004, Person A asked her to fill out new forms before

further action could be taken on her pay adjustments and stated he had

no idea how long processing would take. Complainant notes that Person

A offered her forty hours of advance pay which she refused.

In its April 29, 2004 decision, the agency concluded that the settlement

agreement was not breached. The agency stated that Person A consulted

with Albany District Time and Attendance (TACS) and Person B of

Human Resources regarding the appropriate documentation needed to be

provided to the Back Pay Unit to address the terms of the agreement.

The agency stated as a result, on January 14, 2004, payroll adjustments

were presented to complainant for her review. The agency explained

that complainant noted errors which were corrected and complainant

signed the corrected copies on January 21, 2004, fifteen days after

the agreement was signed. The agency stated that the adjustments were

sent to the Back Pay Unit on January 22, 2004. The agency noted that

periodically Person A contacted the Back Pay Unit to inquire on the

processing of the adjustments and was told that it would take six to

eight weeks for processing. On April 5, 2004, Person A received notice

from the Back Pay Unit that two additional forms (PS Form 8038 and PS

Form 8039) were needed to complete the processing because it involved

an EEO settlement in excess of 80 hours. The agency stated that Person

A presented these two forms to complainant on April 7, 2004, for her

signature and offered complainant a 40-hour advance which she refused.

The agency stated that the forms were never returned to Person A.

On appeal, complainant states that the settlement agreement was breached

when ninety days after it was entered into, Person A presented her with

two forms (8038 and 8039) for completion. Complainant states she is

unsure which date fo use for pay adjustment on form 8038 and states

that form 8039 requires more agency operations than she can access.

Additionally, complainant states that the agency missed the processing

date by one day, since it did not provide her with the adjustments until

January 22, 2004. Complainant states she was led to believe that the

settlement agreement would be finalized in approximately ninety days

after it was signed- including 15 days to process pay adjustments (which

she states she had to correct three times) and which were not processed

until the sixteenth day after the agreement.

The record contains ten Pay, Leave, or Other Hours Adjustment Requests

signed by complainant on January 21, 2004, and signed by Person A on

January 22, 2004, beginning pay period twenty, week two, through pay

period twenty five, week one.

The record contains a March 15, 2004 letter addressed to complainant's

congressman, signed by the Acting District Manager, stating that the pay

adjustments signed by complainant on January 21, 2004, were sent to the

agency's Processing Center, �Back Pay Unit� on January 22, 2004.

The record contains a letter from the Back Pay Coordinator to the

agency's Accounting Office indicating that the PS Form 2240s from the

agency's accounting office were received on March 20, 2004. The Back

Pay Coordinator stated that since the request was for over eighty hours,

they should be resubmitted as a back pay award per ELM and forms 8038

and 8039 were also needed.

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).

Upon review of the record, we find that complainant has failed to show

that the agency breached the terms of the January 6, 2004 settlement

agreement. The record reveals that immediately after the agreement

was signed, the agency began the paperwork to reimburse complainant for

the relevant period of September 14, 2003, through November 17, 2003.

Complainant acknowledges receipt of these payroll adjustments which she

contends she had to correct three times. The record contains ten Pay,

Leave, or Other Hours Adjustment Requests signed by complainant on January

21, 2004, and signed by Person A on January 22, 2004, for the dates

listed in the agreement. Thus, we find that the agency substantially

complied with provisions (5) and (6) of the agreement when it provided

complainant with the pay adjustments which she signed on January 21,

2004, and then forwarded the pay adjustments for processing on January

22, 2004. We note, complainant is not challenging the calculations of the

pay adjustments or the removal of the AWOL hours. The agency notes that

on April 5, 2004, it learned from the Back Pay Unit that two additional

forms needed to be completed to process complainant's payment. On April 7,

2004, the agency provided complainant two additional forms necessary for

completion to finalize processing of her payment. Complainant does not

state on appeal that she provided these completed forms to the agency.

Finally, we note that despite complainant's contention that the processing

of the pay adjustments had to be completed within 90 days, we find the

agreement did not specify complainant would receive actual payment within

90 days.

We note that the agency is still obligated to reimburse complainant

for wages for the period of September 14, 2003 - November 17, 2003,

upon receipt of the completed forms by complainant. If complainant

wishes to be reimbursed per provision 2 of the settlement agreement,

then she should cooperate in the agency's efforts to properly determine

the monies due her.

Accordingly, the agency's decision is AFFIRMED.

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 (S0900)

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 (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

November 8, 2004

__________________

Date