0120093013
12-22-2009
Andrew J. Abernathy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Andrew J. Abernathy,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120093013
Agency No. 1H381002509
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 8, 2009, finding that it was
in compliance with the terms of the March 12, 2009 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.
The settlement agreement provided, in pertinent part, that:
(a). Management will pay the lump sum of $275.00 for the holiday within
30 days of March 12, 2009.
(b). Management will follow the correct pecking order for holiday work.
By letter to the agency dated April 24, 2009, 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 comply with section 1 of this agreement
when after more than 30 days had passed and he had not been compensated.
In its June 8, 2009 FAD, the agency concluded that the Manager,
Distribution Operations (MDO), was contacted and apprised of complainant's
claim of a breach of the settlement agreement. He stated that initially,
he completed the form and submitted it for payment but was notified
that Shared Services did not process lump sum payments. Again, the MDO
completed paperwork for processing the payment but complainant would not
agree to sign the form, which further delayed the process. The MDO then
attempted to process the payment through the GATS (Grievance/Arbitration
Tracking System) but was notified that since this payment was not
the result of a grievance, it could not be processed in that system.
After finally being advised of the proper form (PS Form 8041) which
did not require complainant's signature, the MDO immediately completed
it and submitted it to Eagan, MN on May 6. 2009. The agency's Finance
Division was contacted on May 26, 2009, and indicated that the Payroll
Journal revealed the adjustment had been processed in Pay Period 11-09.
The agency noted that at this time, complainant was contacted by the
EEO/ADR Specialist concerning the adjustment. The agency further noted
that complainant had received the check for the lump sum payment but
would not withdraw his allegation of breach.
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).
The burden is on the party alleging breach to establish that a breach
has occurred. Based on the evidence in the record and recognizing that
complainant details his own account in several letters to the agency,
the Commission is not swayed in finding that the agency has failed to
comply with the settlement agreement in this matter. Moreover, the record
reflects that the agency made good faith attempts to timely process the
payment in question but was hampered by complainant's unwillingness
to endorse the necessary paperwork. Accordingly, the agency's final
decision finding no settlement breach is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
December 22, 2009
__________________
Date
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0120093013
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093013