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