Brian D. Leigh, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 7, 2005
01a41860 (E.E.O.C. Mar. 7, 2005)

01a41860

03-07-2005

Brian D. Leigh, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Brian D. Leigh v. United States Postal Service

01A41860

March 7, 2005

.

Brian D. Leigh,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A41860 Agency No. 4-H-300-0188-99

DECISION

The record reveals that complainant and the agency entered into a

settlement agreement on December 2, 2000 regarding complainant's EEO

complaints. The settlement agreement provided:

The parties agree to settle the EEO cases of the complainant, Brian

Dan Leigh, that are presently pending in the administrative process

as follows:

1. The [agency] agrees to place the complainant in the position of

Postmaster, Oxford, Georgia, noncompetitively effective December 30, 2000.

2. The agency agrees to pay the complainant back pay with interest at

level EAS-18 from the date that the Social Circle Postmaster position

was filled.

3. The agency agrees to compute the complainant's merits increase and

EVA bonuses for fiscal years 1997 to the present at level EAS-18.

The agency agrees to pay the complainant a lump sum payment

of $10,000.00.

The agency agrees to pay reasonable attorney's fees and expenses

to complainant's counsel.

Complainant indicated that he informed the agency on October 19, 2001,

that it had breached the settlement agreement with regard to the payment

of attorney's fees and certain other provisions. Complainant stated

that the agency did not respond to his breach claims and he filed an

appeal with the Commission. In Leigh v. United States Postal Service,

EEOC Appeal No. 01A21832 (November 3, 2003), the Commission remanded

the matter to the agency for an investigation of the breach claim.

The Commission also ordered the agency to provide in part a copy of the

pay statement issued to complainant in connection with his back pay award,

information demonstrating that the award was correctly calculated, and

an explanation of why the full amount of attorney's fees requested by

complainant's attorney was not tendered.

By decision dated December 23, 2003, the agency determined that it

had not breached the settlement agreement. The agency stated that

the Social Circle Postmaster's position was filled on September 13,

1997, and that it attached the payroll adjustment report reflecting the

back pay adjustments. The agency further noted that complainant was

paid $759.43 in interest. The agency stated that it also attached the

payroll adjustment report that shows the computation of complainant's

merit increases and EVA bonuses for fiscal year 1997 to the time of

the settlement agreement. With regard to attorney's fees, the agency

determined that the full amount requested, $72,957.07, was not tendered

because five of the complaints that were invoiced by complainant's

attorney were not part of the settlement agreement. According to

the agency, it closed Agency No. 4-H-300-0161-98 on April 30, 1998,

with a finding of no discrimination, and the Commission subsequently

affirmed its decision on June 23, 1999. The agency determined that

four other complaints, Agency Nos. 4-H-300-1147-96, 4-H-300-1170-96,

4-H-300-1171-96, and 4-H-300-0237-97 were closed on February 8, 2000,

when it adopted the AJ's findings of no discrimination. The agency stated

that complainant did not file an appeal with regard to these complaints.

According to the agency, the total of attorney's fees submitted for the

five closed complaints was $8,222.56, and that therefore, its payment

of $66,938.68 was an overpayment of $2,204.17.

On appeal, complainant maintains that the agency failed to provide a

detailed explanation supporting its calculation of back pay, interest,

merit increases, and EVA bonuses. Complainant states that all the agency

provided were pay records. With respect to attorney's fees, complainant

contends that he filed appeals with the Commission on February 14, 2000,

with regard to four of the five cases that the agency considered closed.

Complainant acknowledges that Agency No. 4-H-300-0161-98 was closed

prior to the settlement agreement and should not have been part of the

settlement agreement. Complainant states that the agency has improperly

denied payment of $6,771.06 in attorney's fees. Complainant did not

claim that the agency breached provisions one or four of the settlement

agreement.

The Commission has consistently held that settlement agreements are

contracts between the complainant and the agency, and 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, 381 (5th Cir. 1984).

With regard to the agency's alleged breach of provisions 2 and 3 of

the settlement agreement, we observe that the agency has produced

pay statements that reflect the adjustment set forth in the settlement

agreement that complainant be paid back pay with interest at level EAS-18

from the date that the Social Circle Postmaster position was filled,

as well as the merit increases and EVA bonuses at level EAS-18 for

Fiscal Year 1997 to the date the settlement agreement was executed.

Complainant has not demonstrated that the agency's calculations are

erroneous or based on a different time interval than that referenced

in the settlement agreement. As for the alleged breach of provision

5, we find that the amount paid by the agency does not constitute the

appropriate amount of attorney's fees. The record indicates that the

agency erroneously determined that four complaints were closed at the time

that the settlement agreement was executed. The agency issued a final

action with regard to these four complaints, Agency Nos. 4-H-300-1147-96,

4-H-300-1170-96, 4-H-300-1171-96, 4-H-300-0237-97, on February 8, 2000.

Complainant filed an appeal with the Commission with regard to these

complaints on February 14, 2000. Moreover, the record indicates that

these four complaints are among the cases that were closed under the

terms of the settlement agreement. The agency has failed to establish

that the attorney's fees claimed with regard to these four complaints are

unreasonable. The Commission shall remand the matter so that the agency

pay complainant's counsel the attorney's fees and expenses claimed by

complainant for work in the four complaints (Agency Nos. 4-H-300-1147-96,

4-H-300-1170-96, 4-H-300-1171-96, 4-H-300-0237-97) less any amounts

complainant's counsel has been reimbursed by the agency for such work.

Therefore, the agency's decision finding no breach of the settlement

agreement is AFFIRMED with regard to the second and third provisions

of the agreement and REVERSED with regard to the fifth provision of

the agreement. This matter is therefore REMANDED for further processing

pursuant to the Order below.

ORDER

Within 30 days of the date this decision becomes final, the agency shall

pay complainant's counsel the attorney's fees and expenses claimed by

complainant for work in the four complaints (Agency Nos. 4-H-300-1147-96,

4-H-300-1170-96, 4-H-300-1171-96, 4-H-300-0237-97) less any amounts

complainant's counsel has been reimbursed by the agency for such work.

The agency is directed to submit a report of compliance, as provided

in the statement entitled herein �Implementation of the Commission's

Decision.� The report shall include supporting documentation verifying

that the corrective action has been implemented.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

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

March 7, 2005

__________________

Date