01A20469_r
07-25-2002
George Folk II, Complainant, v. John E. Potter, Postmaster, United States Postal Service, Agency.
George Folk II v. United States Postal Service
01A20469
July 25, 2002
.
George Folk II,
Complainant,
v.
John E. Potter,
Postmaster,
United States Postal Service,
Agency.
Appeal No. 01A20469
Agency No. 1D-276-0035-00
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated September 18, 2001, finding that it was in compliance with
the terms of a November 8, 2000 settlement agreement. 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 official agrees to obtain an opinion letter from human
resources defining the rules and regulations relating to military
leave, and weekend drill assemblies. Said letter to include statutory
annotations.
(B) Counselee will receive pay for all advance party and military leave
in June and July 2000, for which proof of attendance is provided; and
(C) Management will review alleged non-payment of choice vacation leave
in July 2000.
By letter to the agency dated June 12, 2001, complainant broadly alleged
that the agency breached the settlement agreement. Complainant alleged
that the agency failed to provide him �answers in compliance with the
agreement� (provision (A)). Moreover, a fair reading of the June 12,
2001 letter in its entirety reflects that complainant also alleged
breach of provisions (B) and (C) of the agreement, concerning his pay for
advance party and military leave in June and July 2000; and non-payment
of choice vacation leave in July 2000.
In its September 18, 2001 final decision, the agency found no breach.
Specifically, the agency concluded that a named Management official
had stated that complainant would not accept any information that
was obtained pursuant to provision (A). The agency noted that the
Management official further stated that he would speak with complainant
concerning the misunderstanding. Furthermore, the agency concluded
that it attempted to reach complainant by phone but was informed by the
operator that complainant's telephone was either not working or that his
number was changed. Finally, the agency determined there was no breach
due to its assumption that the issue was resolved because there was no
correspondence from either the management official or complainant.
On appeal, complainant submits his statement and several documents.
The record contains copies of complainant's military training attendance,
leave slips and pay stubs. Complainant argues that his military leave,
advanced party leave and choice vacation were approved in advance but they
were not timely submitted to the timekeeper for the processing of pay.
In his statement, complainant wrote �Please notice the loss of annual
leave and, the accumulation of leave without pay during said period, to
date there has been no explaination for this action. I have provided
[a named Management official] a copy of the United States Labor Laws
governing military leave and, weekend drill assemblies with no response
received (August 2000).� Further, complainant argues that this situation
has caused additional loss of wages and lost time due to his illness.
The agency provided no response to complainant's appeal.
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 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).
A fair reading of the record reflects that the agency has not submitted
sufficient evidence to show that the agency complied with provisions
(A) - (C) of the agreement. The agency's decision makes reference to
statements by a named Management official, who purportedly provided
information as to what actions occurred or the rationale for certain
actions. The record, however, contains no affidavit, statement or other
evidence from the actual Management official who has direct knowledge of
the claims made by the agency in the agency's decision. The Commission
can not find that the agency has complied with the settlement agreement
based simply on the agency's claim as to what the Management official
purportedly stated. As we are unable to ascertain from the present record
whether or not there has been a breach, the agency's decision finding
that the settlement agreement have not been breached is VACATED and we
REMAND this matter to the agency for further processing in accordance
with the ORDER below.
ORDER
The agency, within fifteen (15) calendar days of the date this decision
becomes final, shall supplement the record with evidence whether or
not there is compliance with the settlement agreement. Such evidence
shall include an affidavit from the management official referenced in the
settlement agreement, identifying whether or not he obtained an opinion
letter from human resources defining the rules and regulations relating
to military leave, weekend drill assemblies and statutory annotations
(provision (A); whether or not complainant received pay for all advance
party and military leave in June and July 2000 for which proof of
attendance is provided (provision (B)); and whether or not management
reviewed alleged non-payment of choice vacation leave in July 2000
(provision (C)).
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall issue a new decision determining whether it
breached provisions (A), (B), and (C) of the November 8, 2000 settlement
agreement. A copy of the agency decision must be sent to the Compliance
Officer as referenced herein.
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 (R0900)
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 (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
July 25, 2002
__________________
Date