0120072009
01-22-2009
Don A. Kaiser, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Don A. Kaiser,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072009
Agency No. 4E-980-0119-06
DECISION
Complainant filed a timely appeal with this Commission from a letter
of determination by the agency dated February 21, 2007, finding that
it was in compliance with the terms of the October 13, 2006 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 October 13, 2006 settlement agreement provided, in pertinent part,
that:
Counselee agrees to fill out a CA-7 and CA-7A to receive
compensation for lost wages. Management agrees that there
was less than 8 hours of work available with the employee's
medical restrictions. The dates for lost wages are August 9,
2006 through September 18, 2006.
By letter to the agency dated January 23, 2007, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant stated he learned through the Injury Compensation that the
agency was challenging "my submission of the CA-7A's for compensation of
those lost wages." Complainant stated "furthermore the remedy offered
the submission of CA-7A forms to Injury Compensation for lost wages is
no consideration."
In its February 21, 2007 letter of determination, the Manager Human
Resources (M1) found no breach. M1 stated that according to the
Postmaster, complainant attempted to turn on CA-7's for periods of time
in 2003 and 2004. The Postmaster stated that he returned the request
to complainant and asked him to resubmit with the dates indicated in
the settlement agreement, August 9, 2006 through September 18, 2006.
The Postmaster further stated that when complainant resubmits the
paperwork with the correct dates, he will process the claim through
Injury Compensation. Moreover, M1 stated that the record reveals that
complainant was paid a lump sum payment of $550.00 by US Postal Check
Number 0102392578 dated October 25, 2006.
Finally, M1 noted that in addition to claiming breach of the instant
agreement, complainant submitted a PS Form 2564-A "Information for
Pre-complaint Counseling" with a contact date of January 8, 2007.
M1 determined that complainant's new claims were not related to the
instant agreement, and that those claims would be processed as a new,
separate complaint.
On appeal, complainant argues that there was supposed to be two separate
monetary awards dealing with compensation for lost wages from August 9,
2006 through September 18, 2006. Specifically, complainant states that
one award is based on the lost hours of 151 hours totaling in $3,500 in
compensation for lost wages at his pay rate; and that the second one is
a $550.00 lump sum award in reimbursement for the loss of contributions
to his thrift savings plan. Complainant states "contrary to [M1's]
determination the $550 lump sum payment does not satisfy the monetary
element of the settlement agreement. It does not satisfy the submission
of the CA-7 and CA-7A for the 151 lost hours, a sum totaling approximately
$3,500. Had the lump sum of $550 been the only remedy I was seeking, the
issue of the submission of CA-7 and CA-7A, for the period of Aug 9 thru
Sept 18, 2006 would not have been cited as a component of the settlement
agreement." Complainant states while the dates entered in the CA-7 and
CA-7A were correct, he has not received "compensation for lost wages."
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 finds no breach of the instant agreement. We note that
this provision provides complainant to fill out a CA-7 and CA-7A and
receive compensation for lost wages for the period of August 9, 2006
through September 18, 2006. If complainant wanted the agency to provide
him with a $550.00 lump sump payment in reimbursement for the loss of
contributions to his thrift savings plan and $3,500.00.00 for compensation
lost wages in the settlement agreement, he could have negotiated with the
agency to include such provisions. See Jenkins-Nye v. General Service
Administration, EEOC Appeal No. 01851903 (March 4, 1987). Thus, the
Commission finds the agency complied with the instant agreement.
Accordingly, the agency's finding of no breach of the instant settlement
agreement is AFFIRMED.
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 (S0408)
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 (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
January 22, 2009
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072009
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