01a30125
06-03-2004
Randall Roberts, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Randall Roberts v. United States Postal Service
01A30125
June 3, 2004
.
Randall Roberts,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30125
Agency Nos. 1F-944-0010-99
1F-944-0018-99
1F-944-0002-00
1F-944-0012-00
1F-944-0014-00
Hearing Nos. 370-99-X2576
370-A0-X2099
370-A0-X2379
370-A0-X2569
370-A1-X2330
DECISION
Complainant filed an appeal with this Commission postmarked September 20,
2002, from the agency's May 22, 2001 final action, implementing the EEOC
Administrative Judge (AJ)'s finding of no discrimination; and regarding
whether the agency has complied with the terms of a settlement agreement
which the parties entered into on September 25, 2001.
Agency No. 1F-944-0010-99
The record reveals that during the relevant time, complainant was
employed as a Distribution Clerk, at the agency's North Bay Processing
and Distribution Center in Petaluma, California. Complainant sought
EEO counseling and subsequently filed a formal complaint on March 16,
1999, alleging that he was discriminated against in reprisal for prior
EEO activity when he was subjected to harassment through work scheduling
and work assignments.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an AJ.
On May 2, 2001, the AJ issued a decision without a hearing, finding no
discrimination. On May 22, 2001, the agency's final action implemented
the AJ's decision.
A copy of the certified mail return receipt card reveals that the agency's
May 22, 2001 final action was received at complainant's address of record
on June 6, 2001. A review of the final action reveals that the agency
properly advised complainant that he had thirty (30) calendar days after
receipt of its final decision to file his appeal with the Commission.
Complainant has not offered adequate justification for an extension
of the applicable time limit for filing his appeal. Accordingly,
complainant's September 20, 2002 appeal regarding the agency's May 22,
2001 merit decision is hereby DISMISSED. See 29 C.F.R. � 1614.403(c).
Breach Claims Regarding September 12, 2001 Settlement Agreement
The record reveals that on September 25, 2001, the parties resolved
Complaint Nos. 1F-944-0018-99, 1F-944-0002-00, 1F-944-0012-00, and
1F-944-0014-00 by entering into a settlement agreement. This agreement
provided, in pertinent part, that the agency agreed to take the following
action:
(5) The Complainant's pay and step increases in level 9 shall be
adjusted as if promoted from Level 5 Step 0 on November 21, 1998, to the
appropriate Step in Level 9 in accordance with the Employee Labor Manual
(ELM). In addition to the payment in clause #3, the Complainant shall
be made whole for delay in promotion by payment at the higher level and
steps, with inclusion of night differential, at the appropriate Level 9
rates for all hours he worked or was on paid leave between November 21,
1998, and the date his present earnings are properly adjusted to reflect
the Level and Step he would have achieved if promoted on November 21,
1998. If this retroactive payment is made later than December 31, 2001,
an interest penalty with rate determination as that as defined under
the Back Pay Act, shall be paid to the Complainant on the unpaid amount
retroactive to the signing date of this Agreement.
(13) Should the Agency's non-compliance with the terms of this Agreement
result in necessitating further action by the Complainant, the Agency
agrees to reimburse the Complainant for all reasonable costs and counsel
fees associated with enforcing compliance with this Agreement. In return,
the Complainant agrees to make good faith effort to secure the Agency's
compliance with this Agreement before resorting to costly measures
such as securing counsel and Complainant agrees to contact the Agency
representative to remind her concerning the $15,000 lump sum payment by
November 26, 2001.<1>
By letter to the Commission dated September 17, 2002, complainant alleged
that the agency breached provisions (5) and (13), and requested that
the agency specifically implement its terms or reinstate his complaint.
Complainant alleged that he received partial settlement with his regular
compensation on April 12, 2002. Complainant further alleged that his
current compensation rate was not properly adjusted. Further, complainant
alleged that he has not been compensated with interest for delay in
partial payment. Subsequently, complainant engaged in correspondence with
the agency representative regarding the impasse over the implementation
of provisions (5) and (13), including letters dated March 12, 2002,
March 26, 2002, and June 12, 2002. According to complainant, the agency
representative agreed during telephone conversations in July and August
2002, that the adjustments were improper and that the appropriate
compensation would be forthcoming, including the interest payment.
Complainant claimed further that the agency representative also agreed to
send written communication restating the understandings reached during
the July and August 2002 telephone conversations. Complainant stated
that in August 2002, he received two Notification of Personnel Action
forms indicating readjustment for time periods in 2000. Further,
complainant claimed that he has not received any written communication
from the agency representative, or any additional compensation as a
result of the changes indicated on the Notifications of Personnel Action.
The record reveals that on November 26, 2002, the agency sent complainant
a written request to clarify his breach claims and informing him that
failure to respond within fifteen days, would result in the dismissal
of his complaint.
By letter to the Commission dated December 18, 2002, the agency argues
that complainant's instant cases are presently premature and requests that
the Commission dismiss this portion of the appeal as prematurely filed.
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 O 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).
The Commission notes that provision (5) provides no time limit for
compliance. In the absence of time frames, the parties must fulfil the
terms of a settlement within a "reasonable" amount of time. See Garrison
v. Department of Treasury, EEOC Request No. 05950867 (Apr. 24, 1997)
(citing Gomez v. Department of the Treasury, EEOC Request No. 05930921
(Feb. 10, 1994)). We note that the record reflects that on April
12, 2002, approximately six months after the agreement was executed,
complainant received partial settlement with an adjustment that he
determined was inaccurate, and no interest penalty. At the time of
complainant's September 20, 2002 appeal to the Commission, complainant
had not received any remaining compensation plus interest penalty.
The Commission determines that the agency has not acted within a
reasonable time frame, and that there is insufficient evidence of record
reflecting compliance with provision (5).
Regarding provision (13), the Commission determines that the record
supports a finding that complainant made a good faith effort to secure
the agency's compliance with the settlement agreement. In his letter
to an agency official, dated June 12 2002, complainant requested a
written communication within thirty-five (35) days stating the agency's
current position concerning the back pay and a definitive date on which
the payment will be made. The record reveals that the agency did not
respond to complainant's March 12, 2002, March 26, 2002, and June 12,
2002 letters seeking compliance. Therefore, we find that the agency
breached provision (13).
We note that complainant, on appeal, seeks enforcement of provisions (5)
and (13) or reinstatement of his complaint. Pursuant to our authority in
29 C.F.R. � 1614.504(c), we order the agency to take prompt corrective
steps to implement provisions (5) and (13). Accordingly, we REMAND
the matter to the agency for further processing in accordance with the
Order below.
In summary, regarding Agency No. 1F-944-0010-99, complainant's September
22, 2002 appeal is DISMISSED on the grounds that it is untimely filed.
Regarding the September 25, 2001 settlement agreement in resolution
of Agency Nos. 1F-944-0018-99, 1F-944-0002-00, 1F-944-0012-00 and
1F-944-0014-00, we REMAND the matter to the agency for further processing
in accordance with the Order below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall implement provisions (5) and (13) of the September 25,
2001 settlement agreement. The agency is ORDERED to issue the remaining
back pay and interest penalty associated with that grade and step from
Level 5 Step 0 on November 21, 1998, to the appropriate Step in Level
9; and to reimburse complainant for all reasonable costs and counsel
fees associated with enforcement of the September 25 , 2001 settlement
agreement. A copy of the agency documentation reflecting compliance with
provisions (5) and (13) shall be sent to complainant and 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
June 3, 2004
__________________
Date
1The settlement agreement also provides for
complainant to be paid a lump sum of $15,000.00 for compensatory damages;
and that complainant would be promoted to the position of Electronic
Technician (ET), Level 9, retroactive to November 21, 1998, and placed in
an Electronic Technician, Level 9, position with principal assignment area
at the North Bay Processing & Distribution Center with hours of 15:00 to
23:30 and Saturday/Sunday off days identical to position HRIS #8554536.
These provisions are not at issue in the instant appeal.