0120091682
06-09-2010
Anthony E. Ruiz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Anthony E. Ruiz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120091682
Agency No. 4F-900-0360-08
DECISION
Complainant filed a timely appeal with this Commission from a letter
of determination by the agency dated February 5, 2009, finding that
it was in compliance with the terms of the October 8, 2008 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.
The settlement agreement provided, in pertinent part, that:
[Complainant] will be compensated for sick leave that was not
entered during extended leave. A week of annual leave will be
exchanged for sick leave. Approximately 96.22 hours spanning
from May 08 - Aug 08. The pay adjustment will be processed within
the next pay period.
Subsequently, complainant alleged that the agency breached the
settlement agreement, and requested that the agency implement its terms.
Specifically, complainant alleged that the agency breached the agreement
when it failed to make the pay and leave adjustments set forth in the
settlement agreement.
In its February 5, 2009 letter of determination, the agency concluded that
it did not breach the agreement. The letter stated that complainant's
supervisor reported that he had not processed the promised pay adjustment
because complainant did not provide specific pay period information
pertaining to the adjustment.
On appeal, complainant contends that he provided specific pay period
documentation pertaining to the pay and leave adjustment promised
by the agreement. The agency requests that we affirm its letter of
determination.
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).
In this case, the agency agreed to pay complainant for sick leave that
was not credited to him while he was on extended leave and to change
96.22 hours of annual leave into sick leave. Upon review, we are unable
to determine whether the agency complied with the terms of the agreement
because the record is inadequately developed. The record does not reveal
the precise period for which complainant must be paid for sick leave
that was not credited to him during extended leave or the amount that
he is owed for that period. In fact, there is no leave documentation
indicating how the agency credited complainant for the pertinent extended
leave period. Further, the record does not reveal why complainant had to
submit documentation in order for the agency to comply with the terms of
the agreement, or what type of documentation was needed from complainant.
Finally, the record does not contain any affidavits from management
officials fully explaining the agency's actions under the settlement
agreement. Because of the deficiencies in the record, we are unable to
ascertain whether the agency complied with the settlement agreement.
Accordingly, we VACATE the final decision and REMAND this matter to
the agency for a supplemental investigation and further processing in
accordance with this decision and the ORDER below.
ORDER
The Agency is ORDERED to undertake the following actions:
1. The agency shall supplement the record with affidavits and other
documentary evidence that reveal whether it complied with the provisions
of the October 8, 2008 settlement agreement. Specifically, the agency
shall supplement the record with evidence that reveals the precise
period for which complainant must be paid for sick leave that was
not credited to him and the amount that he is owed for that period.
Further, the agency shall supplement the record with documentation that
explains in detail its calculations for compensating complainant for the
pertinent extended leave period. The agency shall also supplement the
record with any evidence that demonstrates that it has paid complainant
the promised compensation. Additionally, the agency shall supplement
the record with any evidence that proves that it changed 96.22 hours of
annual leave into 96.22 hours of sick leave for complainant. Finally,
the agency shall supplement the record with affidavits from pertinent
agency officials specifically addressing complainant's breach claim and
clearly explaining any documentation in the record that is pertinent to
complainant's breach claim. Complainant shall comply with the agency's
request for information pertinent to its compliance with the terms of
the settlement agreement. Complainant will be provided a copy of the
agency's supplemental investigation and will be given the opportunity
to provide a statement and/or other evidence.
2. Within ninety (90) calendar days from the date this decision becomes
final, the agency shall issue a new determination that fully explains
whether it breached the settlement agreement. The agency shall provide
complainant with appeal rights to the Commission.
A copy of the agency's new determination regarding compliance with the
settlement agreement must be sent to the Compliance Officer referenced
below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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
____06/09/10______________
Date
2
0120091682
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091682