01A00111_r
04-04-2002
Herbert Y. Fong, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Herbert Y. Fong v. United States Postal Service
01A00111
April 4, 2002
.
Herbert Y. Fong,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A00111
Agency No. 4F-956-0123-99
DECISION
Complainant filed a timely appeal with this Commission from a decision by
the agency dated September 15, 1999, finding that it was in compliance
with the terms of the August 16, 1999 settlement agreement into which
the parties entered.
The settlement agreement provided, in pertinent part, that:
Finally, the Postmaster will allot [complainant] five days advanced sick
leave. [Complainant] will call the Postmaster on Wednesday, August 18,
1999 to let her know if he can return to work on Thursday [August 19,
1999] or Friday [August 20, 1999].
By letter to the agency, dated September 9, 1999, complainant alleged
that the agency breached the settlement agreement, and requested
that the agency specifically implement the terms of the August 16,
1999 settlement agreement. Specifically, complainant asserted that he
received thirty-two hours advance sick leave for pay period 18, but that
he never received an additional advance sick leave of eight hours that
would comprise the forty hours of advance sick leave that is identified in
the settlement agreement, discussed above. In separate correspondence,
complainant claimed breach when an agency official did not provide an
additional five days of advance sick leave, in accordance with a verbal
agreement to do so.
In its September 15, 1999 decision, the agency concluded that it did
not breach the settlement breach and determined that complainant was
awarded forty hours advance sick leave. The agency claimed that the
�record reveals that the pay adjustment was reflected on your time for pay
period 18 week 1". The agency further noted that complainant alleged that
an agency official verbally agreed to provide him with five additional
days of sick leave, but that the settlement agreement at issue did not
provide for an additional five days of advance sick leave.
On appeal, complainant submits his brief and several documents. The
record contains copies of complainant's pay stubs for pay period weeks
17, 18 and 19. Complainant argues that his pay stub for pay period 18
revealed he was awarded thirty-two hours advance sick leave, not forty
hours advance sick leave pursuant to the agreement. Complainant further
argued that his pay stub for pay period 19 revealed that he was not
awarded eight hours of advance sick leave, but was awarded eight hours
of holiday pay.
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).
Upon review, the Commission determines that the agency has not breached
any portion of the agreement regarding any breach claim that complainant
may have raised regarding a verbal agreement to grant him an additional
five days advance sick leave. A review of the August 16, 1999 agreement
reveals that there is no such stipulation. The agency's decision finding
no breach of the settlement agreement regarding a verbal agreement to
provide complainant with an additional five days of advance sick leave
was proper.
However, with respect to the issue of whether complainant was provided
with forty hours of advance sick leave, the record reflects that
complainant has presented evidence to support a finding that he has
not been allotted the entire amount of this leave, as required by the
settlement agreement. The agency failed to provide evidence in support
of its determination that this provision was not breached. Accordingly,
the agency's finding of no breach of the settlement agreement is REVERSED.
This matter is REMANDED to the agency for further processing in accordance
with the ORDER below.
ORDER
The agency is ORDERED to specifically enforce the August 16, 1999
settlement agreement. Within thirty (30) calendar days of the date that
this decision becomes final, the agency shall comply with the settlement
agreement, i.e., provide complainant with ad additional eight hours of
advance sick leave to total the five days of advance sick leave provided
for in the subject agreement. The agency shall provide documentation
reflecting the allocation of a total of five advance sick leave days to
the Compliance Officer, as referenced below.
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
April 4, 2002
__________________
Date