0120112038
02-21-2013
Michael E. Wekwert, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Michael E. Wekwert,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120112038
Agency Nos. 4J-493-0029-08, 4J-493-0023-09
DECISION
On or about February 28, 2011, Complainant filed the instant appeal with the Commission alleging that the Agency breached the terms of the September 25, 2009 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.
ISSUE PRESENTED
The issue presented is whether the Agency complied with provisions 6g and 6h of the September 25, 2009 settlement agreement.
BACKGROUND
The September 25, 2009 settlement agreement between Complainant and the Agency provided, in pertinent part, that:
6g. [The Agency] agrees to convert three hundred and fifty-nine (359) hours of "Leave Without Pay" hours to "Work" hours resulting in back pay for Complainant during pay periods 01-2009 through 18-2009 (December 29, 2008 - August 22, 2009) ...
6h. [The Agency] agrees to waive 54.01 hours of sick leave owed by Complainant to the Postal Service.
By letter to the Agency dated December 2009, Complainant alleged that the Agency was in breach of the settlement agreement. By letter to Complainant dated December 31, 2009, the Agency requested that Complainant provide a written response explaining the exact section where the breach occurred. Complainant submitted a written response to the Agency on January 12, 2010. Specifically, Complainant alleged that he should have received 24 hours of holiday pay in addition to the 359 hours of back pay because the timeframe the Agency used to calculate his back pay encompassed three holidays. In addition, Complainant alleged that the settlement agreement "stated in broad language that [his] return to work was to include the back pay and any other associated benefits," such as the continuation of his Flexible Spending Account (FSA) through December 31, 2009 and a Thrift Savings Plan (TSP) contribution of up to 80 percent of the back pay award money. When the Agency did not issue a final determination on Complainant's breach allegations, Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant alleged that the Agency breached the settlement agreement when it failed to reimburse him for 54.01 hours of sick leave and the "associated benefits that were to accompany the back pay award." In addition, Complainant stated that he followed up his January 12, 2010 response with phone calls to the Agency in February and March 2010, and was told that this process could take up to a year. Finally, Complainant stated that he has yet to hear anything from the Agency regarding his breach allegations.
The Agency did not submit a response to Complainant's appeal.
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 (Dec. 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 (Aug. 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 (Dec. 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).
Provision 6g
Upon review, we find that the Agency has complied with provision 6g of the settlement agreement. Here, Complainant alleged that the Agency breached the provision when it failed to reimburse him for the "associated benefits that were to accompany the back pay award," specifically benefits relating to his FSA and TSP. In provision 6g, the Agency agreed to provide Complainant with 359 hours of back pay. There is no language in provision 6g, or any other provision in the settlement agreement, referencing an obligation by the Agency to provide Complainant with any "associated benefits" pertaining to his FSA or TSP. Although Complainant may believe that the settlement agreement included such "associated benefits," this was not memorialized in the settlement agreement. We find the language of the agreement to be clear and unambiguous on its face; therefore, its meaning must be interpreted from the four corners of the instrument. Moreover, we note that the settlement agreement specified that it "constitutes the entire understanding and the terms by and between Complainant and [the Agency]." Accordingly, we find that the Agency has complied with provision 6g of the settlement agreement.
Provision 6h
Upon review, we are unable to determine whether the Agency has complied with provision 6h of the settlement agreement. Here, Complainant alleged that the Agency failed to reimburse him for 54.01 hours of sick leave. The record, as it currently stands, consists of the following documents: (a) Complainant's Information for Pre-Complaint Counseling form for Agency No. 4J-493-0029-08; (b) a copy of the settlement agreement dated September 25, 2009; (c) the Agency's letter dated December 31, 009; (d) Complainant's written response dated January 12, 2010; and (e) Complainant's appeal statement. The record contains no evidence to show that the Agency waived 54.01 hours of sick leave owed by Complainant. Accordingly, we remand the matter to the Agency for evidence showing whether it has complied with provision 6h of the settlement agreement.
CONCLUSION
Based on a review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the Agency has complied with provision 6g of the settlement agreement but REMAND the matter as it relates to provision 6h of the settlement agreement to the Agency for a supplemental investigation in accordance with the Order below.
ORDER
Within 60 days from the date this decision becomes final:
(1) The Agency shall supplement the record with affidavits and/or other documentary evidence clearly indicating whether the Agency has complied with provision 6h of the settlement agreement.
(2) The Agency shall issue a new decision, with appeal rights to the Commission, regarding whether it has complied with provision 6h of the settlement agreement.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
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), 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 (T0610)
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 (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
__2/21/13________________
Date
2
0120112038
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112038