0120140982
05-08-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120140982
Agency No. 4K-220-0045-13
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated December 11, 2013, finding that it was in compliance with the terms of a July 29, 2013 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On July 29, 2013, Complainant and the Agency entered into a settlement agreement to resolve a matter that was pursued in the EEO complaint process. The settlement agreement provided that:
Management agrees to process a pay adjustment for [Complainant] for 94 hours within 30 days of the signing of this settlement agreement. Management agrees to process a pay adjustment for 18 hours out of schedule premium pay (9 days at 2 hours per day).
Management agrees to have a service talk with all clerks to explain their roles and responsibilities within thirty days of the signing of this settlement agreement.
By letter to the Agency dated September 16, 2013, Complainant alleged, without elaboration, that the Agency breached the settlement agreement, and requested that the underlying EEO matter be reinstated from the point processing ceased.
In its December 11, 2013 final decision, the Agency found no breach. Specifically, the Agency noted that because Complainant did not provide specific information about how the settlement agreement was breached, Agency management sent an affidavit questionnaire to Complainant on September 14, 2013. Complainant received the affidavit on September 25, 2013, in which he was instructed to return the completed affidavit within 10 days of receipt. Complainant was also informed that failure to return the affidavit within the 10-day time frame could result in his breach allegation being dismissed for failure to cooperate. Complainant did not respond.
Further, the Agency stated despite Complainant's failure to respond, Agency management conducted an inquiry into his breach allegations. The Agency stated that the Manager, Customer Services (Manager) stated that the paperwork for the pay adjustment on the settlement agreement's referenced 94 and 18 hours were completed and submitted on September 19, 2013. The Manager further stated that following the signing of the agreement, he conducted a service talk in the swing room with all employees, including Complainant.
The record contains a copy of the Manager's affidavit. Therein, the Manager stated that he processed Complainant's pay adjustment for 94 hours. Specifically, the Manager stated that on September 19, 2013, he and Complainant signed the pay adjustment form and the adjustment "was then sent to Egan. The Delay was due to [Complainant] being on leave, and not providing his paystub for the pay package per SOX compliance."
The Manager stated that he also processed a pay adjustment for 18 hours out-of-schedule premium pay for Complainant on September 19, 2013. In support of his assertions, the Manager submitted copies of the PS Forms 2240 -"Pay, Leave, or Other Hours Adjustment Request" - indicating that he processed the pay adjustment for 94 hours and 18 hours out of schedule premium pay.
Furthermore, the Manager stated, "I conducted a service talk in the swing room with all clerks including [Complainant], and was witness by two shop stewards from the APWU."
The instant appeal followed. On appeal, Complainant states, "even though there was a pay adjustment Form 2240 signed by me dated September 19, 2013, there is no evidence whatsoever it was ever processed and it is evident in most recent pay stub enclosed that reflects no adjustment has been made. Therefore, once again I ask this above case be reinstated so I may proceed forward in this matter."
ANALYSIS AND FINDINGS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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).
In the instant case, the record in this case contains insufficient evidence for us to determine whether a breach of the instant settlement agreement has occurred with regard to the pay adjustment issue. We note, for example, that the Agency's letter of determination finding no breach is predicated upon statements from the Manager. We acknowledge that the record indeed contains various documents relating to the pay adjustment process. However, these documents are submitted without any elaboration or narrative indicating how they demonstrate Agency full compliance with the above-referenced provision. Given this circumstance, and Complainant's allegation that he has not been paid as agreed, we are unable to ascertain whether the Agency complied with the settlement agreement's provision regarding the pay adjustment.1
Accordingly, this matter is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to take the following action relating to the subject settlement agreement's pay adjustment provision:
The Agency shall supplement the record with evidence clearly showing that it has complied with July 29, 2013 settlement agreement. The supplementation of the record shall include any documentation, such as an affidavit from any responsible management official, indicating whether Complainant's pay adjustments were actually completed. Moreover, any documentation reflecting pay shall be accompanied by a reasoned, explicit elucidation of how such documentation reflects compliance with the subject settlement agreement. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall complete the supplementation of the record and issue a new decision concerning its compliance with the July 29, 2013 settlement agreement.
A copy of the Agency's new decision must be sent to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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
May 8, 2014
__________________
Date
1 On appeal, Complainant's arguments relate exclusively to the pay adjustment provision. However, to the extent that Complainant's intent was to also allege breach of the "service talk" provision, the Manager's statement reflects that the Agency indeed has demonstrated compliance with this provision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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