0120130583
05-16-2013
Kevin Carter, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Kevin Carter,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120130583
Agency No. 4C440012512
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated November 16, 2012, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Northfield Post Office facility in Macedonia, Ohio. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On May 23, 2012, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement (Agreement) provided, in pertinent part, that:
(1) Management agrees that they will agree to pay [Complainant] a total of 4 hrs for the following dates 4/20, 4/21, 4/23, 4/24, 5/4, 5/5, 5/7 [sic] if he was not scheduled. This settlement will resolve all current and future EEO issues regarding these issues.
Complainant again sought EEO Counseling on or about June 22, 2012 and in addition to raising new allegations of discrimination he also alleged that the Agreement had been breached1. Specifically, Complainant alleged that the Agency failed to pay him for the dates referred to in the Agreement. In its November 16, 2012 FAD, the Agency concluded Complainant was "paid $531.00 gross pay on November 8, 2012." The Agency concluded that it had not breached the Agreement.
ANALYSIS
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, Complainant's allegations are somewhat unclear. In his appeal statement he states
1# [sic]. My address is not what is on 'typewriter check payment.' I have not received, or been advised that a settlement payment been [sic] made. 2# [sic] The amount is wrong the [sic] following week (5/11, 5/12/, 5/13, 5/14, 5/15, 5/16, 5/22) and day should have been paid as well per the agreement with (the Area Management Official). . . .. I called to Solon Post Office 44139. The Post Master . . . had the check and advised me she would mail it to me. I would like the balance of all agreed funds mailed to my home.
It thus appears that Complainant is stating that the check was not mailed to his home address but was instead mailed to the Solon Post Office. A review of the record confirms that the check was not sent to Complainant's home address. The Agency has included a sworn statement from the Postmaster (PM) at the Northfield Post Office who avers that Complainant's check "was not sent to the Northfield Post Office, 44056. The copy of the TCP remittance states that the check payment was sent to the $olon Post Office, 44139. In speaking with the Manager . . . she states that [Complainant] came to the Solon Post Office and picked up the check for the payment amount of $352.712." Agency Appeal Exhibit 6. While Complainant in his November 21, 2012 appeal statement denies receiving the check, Post Office records show that the check cleared on November 29, 2012, Exhibit 8, which is after Complainant's appeal. Thus if Complainant did not receive the check, that does not amount to a breach of the Agreement. Instead Complainant should contact that Agency office responsible for issuing the check and see if they can verify who cashed the check and if they cannot verify that it was Complainant, the Agency should reissue Complainant a check for the same amount.
In his appeal package, Complainant also included a copy of the Agreement. The copy provided by Complainant differs from the copy provided by the Agency. Complainant's copy includes the following statement in parentheses immediately following the language stating "This settlement will resolve all current and future EEO issues regarding these issues." The additional statement states "(week of /5/13 is base [sic] off work load 5/11, 5/12, 5/14, 5/15, 5/16, 5/22.)" Thus Complainant is claiming that the alleged check only covers the period from 4/20 to 5/7 and the Agency should also pay him for the period from 5/11 to 5/22. The Agency, however, argues on appeal that "this additional language was not included on the original settlement agreement and those dates should not be used in determining the amount of compensation due" Complainant. In addition, PM averred that the Agreement "was altered by [Complainant] but it was not what had been agreed upon and signed off on in the original document. The only agreement we had was what was written on the original settlement agreement." Agency Appeal Exhibit 6.
It is therefore clear that either Complainant or the Agency altered the original Agreement. Following a review of both copies of the Agreement, we find it implausible that the Agency's version of the Agreement is the altered copy. In both copies of the Agreement, the pertinent clauses are handwritten on lined paper and some of the handwritten text overlays the lines on the paper. If Complainant's version of the Agreement were the original version and the Agency's version had been altered, whoever removed the text would have had to somehow eliminate the text without also eliminating the horizontal lines upon which the text rests. The Agency's copy of the Agreement, however, bears no visible signs of alteration. Adding text to the Agency's version of the Agreement, however, would be very simple since that version leaves two clear horizontal lines at the bottom upon which anyone could add an additional sentence or two using a pen with the same color ink with no obvious signs of alteration. Furthermore, we note that the additional language on Complainant's copy does not constitute a coherent sentence and we find it implausible that such a sentence would have been included in the original Agreement. For these reasons we find that the Agency's version of the Agreement is the true version and Complainant's version is the altered version. We therefore find that Complainant is not entitled to any additional payment from the Agency for the period from 5/11 to 5/22 and that the Agency did not breach the Agreement when it issues a check that did not cover this period.
CONCLUSION
The Agency has substantially complied with the Agreement and we therefore find no breach of the Agreement. The FAD is AFFIRMED.
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 (S0610)
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 (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 16, 2013
__________________
Date
1 This appellate decision addresses only the issue of breach and does not address the allegations of discrimination which the Agency says are being addressed in a separate Agency decision.
2 The Agency's records show that the gross pay award was for $531.60 and after Federal, State, and other deductions the net amount was $352.71. See Agency Appeal Exhibit 3, p. 3.
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0120130583
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120130583