01a52954
08-04-2005
Cedrick James, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cedrick James v. United States Postal Service
01A52954
August 4, 2005
.
Cedrick James,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52954
Agency No. 4-J-480-0099-02
DECISION
Complainant filed an appeal with this Commission concerning the agency's
compliance with the terms of a June 25, 2004 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 June 25, 2004 settlement agreement provided, in pertinent part, that:
Within a reasonable time after this Agreement is executed, [the agency]
will cause to be delivered to complainant, a check representing back-pay
in the amount of 160 straight time hours at his May, June and July 2002
hourly rate in his position of Letter Carrier. .... This check shall
be subject to the usual and customary wage-related withholdings.
The record reflects that complainant's attorney contacted various agency
officials, contending that the agency did not comply with the above
referenced provision. Specifically, complainant, through his attorney,
asserted that complainant did not receive 40 hours of the 160 hour
back-pay award because the agency improperly charged it to military leave.
Complainant filed a grievance on November 19, 2004, claiming breach
of the above provision. The record also reflects that complainant's
attorney contacted the agency's attorney on November 30, 2004 concerning
this same matter. Complainant filed a written breach claim with the EEO
office on March 2, 2005. Complainant's grievance was resolved on March
18, 2005, with an agreement to adjust his military leave record and pay
him the 40 hours of back-pay in dispute. Complainant filed the instant
appeal on March 22, 2005. The agency paid complainant the 40 hours of
back-pay at issue on May 6, 2005.
On appeal, complainant argues that because the agency paid him for only
120 hours of back-pay, it was in breach as to the outstanding 40 hours.
Complainant notes that the short-fall was the result of the agency's
error in accounting for complainant's military leave. Complainant further
asserts that the agency made "additional" deductions for federal, state,
and local taxes, that were not required, and requests an explanation
for these deductions.
In response, the agency states that it did not have an opportunity to
issue a final determination prior to complainant filing an appeal, and
submits an appeal statement to address the breach claim. The agency
avers that even if complainant's breach claim may be deemed timely,
given that it was not filed with the EEO office until March 5, 2005,
the agency complied with the settlement agreement.<1> Specifically, the
agency indicates that once it had the necessary information to investigate
the problem, it was corrected without undue delay, and that payment
was issued to complainant on May 6, 2005. The agency requests that the
Commission find that it was in compliance with the settlement agreement.
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).
We find that the above referenced provision requires the agency to
pay complainant 160 hours of back-pay. However, because the agency
improperly failed to account for complainant's 40 hours of military
leave during the pertinent period, for which he should have been paid
his usual wage, this amount was initially excluded, and complainant only
received 120 hours of back pay. However, the record reflects that once
this matter was brought to the agency's attention, in November 2004,
the agency made the proper adjustments to complainant's military leave.
The Commission acknowledges that it took an additional six months for the
agency to process and tender the 40 hours of back-pay to complainant.
The Commission determines that the circumstances of this case nonetheless
show that the delay is justified, and the agency substantially complied
with the above referenced provision.
There is nothing in the record to suggest that the agency deliberately
failed to comply, or delayed in complying, with the above referenced
provision. To the contrary, the record shows that complainant timely
received 120 hours of back pay, and that 40 hours were excluded due to
an administrative error regarding complainant's military leave, which
was corrected, and payment was made.
As to complainant's contention that improper deductions were made
from the back pay award, we find that this claim is speculative.
Complainant provides nothing to suggest that the deductions were not
"the usual and customary wage-related withholdings" as set forth in
the settlement agreement. We note that there is no provision in the
settlement agreement obligating the agency to provide complainant with an
explanation to justify its deductions from complainant's back-pay award.
For the reasons set forth above, we find that the agency substantially
complied with the settlement agreement, and we find no breach of the
settlement agreement. Because complainant is not a prevailing party in
this appeal, there is no entitlement to attorney's fees or costs.
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
August 4, 2005
__________________
Date
1Review of the settlement agreement discloses that it does not contain
a provision providing notice to complainant referencing 29 C.F.R. �
1614.504 regarding the procedure for filing a breach claim. Therefore,
we determine that it would not be equitable to find that complainant's
breach claim is untimely.