Mark A. Forman, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 29, 2004
01A45760_r (E.E.O.C. Nov. 29, 2004)

01A45760_r

11-29-2004

Mark A. Forman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Mark A. Forman v. United States Postal Service

01A45760

November 29, 2004

.

Mark A. Forman,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A45760

Agency No. 4-H-327-0056-02

DECISION

Complainant filed a timely appeal with the Commission from the agency's

August 6, 2004 final decision regarding his breach of settlement

agreement claim.

The parties entered into a settlement agreement on April 20, 2004,

which provided, in pertinent part that:

The complainant will provide a completed Form CA-7 showing the dates

for which he is requesting compensation for his accepted OWCP claim.

The complainant will also provide the medical information supporting

the claim for compensation.

When the Agency receives the paperwork from the complainant, the Agency

will attach the complainant's clock rings for the specified time period

and forward the information to the Department of Labor with a statement

explaining a reason for the delay in filing for the compensation.

Complainant alleged that the agency breached the settlement agreement

because he had not been compensated for monies rightfully coming and

when Person A went so far as to determine that he was not eligible for

compensation even though an EEO settlement was reached.

In a final decision dated August 6, 2004, the agency determined that

it did not breach the terms of the settlement agreement. The agency

stated that Person A is unaware of any memorandum in which she makes

a determination that complainant was not entitled to compensation.

The agency notes that only the Department of Labor's Office of

Workers' Compensation Programs (OWCP) has the authority to make such

a determination. Person A stated that her role is to determine whether

a CA-7 form submitted is properly completed and to forward that form

to the Department of Labor for Processing. The agency explained that

if the forms are not properly completed, a certified letter is sent to

the claimant explaining what needs to be rectified in order to process

the claim.

The agency notes that since April 20, 2004, complainant submitted

two CA-7s on May 14, 2004. The agency explains that these CA-7s were

returned for corrections and resubmitted to the Injury Compensation

Office on May 18, 2004. The agency states the two CA-7s were forwarded

to the Department of Labor on May 19, 2004. The agency notes a third

CA-7 was received by Person A on May 24, 2004, which was submitted to

the Department of Labor by overnight mail the same day. The agency

notes that on June 18, 2004, a CA-7 was received from complainant

and was submitted to the Department of Labor the same day. The agency

stated that in accordance with the agreement, complainant's time records

were reviewed by the Labor Relations Specialist, Person B, and Person B

prepared a cover letter, which was reviewed and approved by complainant,

and forwarded to the Department of Labor.

The record contains a May 21, 2004 letter from Person B, the agency's

Labor Relations Specialist, to Person C, OWCP, Manager, Injury

Compensation, regarding complainant's OWCP Claim number 062050263.

In this letter, Person B states that per an EEO settlement, she has

reviewed the time records for complainant's claim for compensation for

an on-the-job injury for the period of December 10, 2001, through May 29,

2002. Person B explained that per an EEO settlement she agreed to review

the records and determine the number of hours complainant was denied work.

Person B states that the attached spreadsheet shows the hours, by day,

that complainant was charged AWOL or LWOP. Person B states that the

total hours during this period equal 195.78. Additionally, Person B

noted that �[b]ecause of the age of this claim, many 3971s are missing

and could not be located. However, [Person B] was able to retrieve the

time certifications for the entire period in question.�

The record contains an August 3, 2004 letter from Person A to the

Department of Labor regarding complainant's claim for compensation

in which Person A states that with regard to the dates in question,

complainant was told that he would not be paid for dates that he did not

work in order to take his medicine at the times that he wanted to take it.

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 of the record, we find that complainant failed to show that

the agency breached the terms of the April 20, 2004 settlement agreement.

Pursuant to the agreement complainant was to provide a completed Form CA-7

with medical information showing the dates for which he is requesting

compensation for OWCP claim. The agency agreed that after receiving

complainant's paperwork, it would attach complainant's clock rings for

the specified time period and forward the information to the Department

of Labor with a statement explaining a reason for delay in filing for the

compensation. The record reveals that the agency forwarded the Department

of Labor the requisite information regarding the hours he was denied work

during December 10, 2001, through May 29, 2002. Complainant does not

dispute the agency's assertion that it forwarded this information to the

Department of Labor. Complainant claims, however, that the agreement was

breached because he was not paid by the Department of Labor for the hours

in question. The April 20, 2004 settlement agreement did not guarantee

that complainant would receive compensation from the Department of Labor.

Accordingly, the agency's decision finding no breach is AFFIRMED.

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

November 29, 2004

__________________

Date