01a44683_r
07-26-2005
Jonathan McCutcheon Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jonathan McCutcheon Jr. v. United States Postal Service
01A44683
July 26, 2005
.
Jonathan McCutcheon Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44683
Agency No. 1K-201-0061-03
DECISION
By letter to the Commission dated May 26, 2004, complainant alleged that
the agency breached a November 6, 2003 settlement agreement.<1>
The November 6, 2003 settlement agreement provided, in pertinent part,
that:
(1) [Complainant] will receive 32 hours of overtime pay, based on
missed opportunities during the period of revocation of his driving
privilege.<2>
By letter to the agency dated December 26, 2003, complainant claimed
settlement breach. Specifically, complainant claimed that the agency
failed to compensate him �with thirty-two hours of overtime within
forty-five days.�
By letter to complainant's attorney dated June 17, 2004, the agency stated
that it was in compliance with the settlement agreement. The agency
attached four Pay, Leave, or Other Hours Adjustment Request forms to
its June 17, 2004 letter. The agency stated that these forms reflected
that complainant would receive his thirty-two hours of overtime pay,
pursuant to the settlement agreement, �sometime in the weeks to follow.�
In its final determination dated July 23, 2004, the agency concluded
that it was in compliance with the settlement agreement. Therein, the
agency states that �available record[s] reveal that thirty-two hours of
overtime have since been paid. [Complainant's] claim that it was not done
within forty-five days was not a term stipulated...in the...settlement
agreement.�
Complainant, through his attorney, is seeking interest and attorney's
fees.
The agency asserts that complainant's breach claim is moot because
the agency submitted forms that will result in complainant being
compensated for the thirty-two hours of overtime. The agency asserts
that it was not obligated to make the payment within forty-five days.
In addition, the agency states that complainant's appeal is premature
because complainant did not wait for a determination from the agency
before he filed his appeal. Morever, the agency states that complainant
is not entitled to interest or attorney's fees.
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).
As a threshold matter, the Commission does not find complainant's appeal
to be premature. The record reflects that complainant informed the
agency of the alleged breach of the settlement agreement via letter
dated December 26, 2003. Complainant, through his attorney, filed an
appeal after more than thirty-five days had passed from informing the
agency of the alleged noncompliance, pursuant to 29 C.F.R. � 1614.504(b).
In the instant case, we are unable to ascertain whether the agency is
in compliance with provision (1) of the settlement agreement. While we
agree with the agency that the settlement agreement does not obligate
the agency to make the overtime payment to complainant within forty-five
days from the execution of the settlement agreement, we are unable to
determine whether complainant ever received the payment for thirty-two
hours of overtime. The Commission acknowledges that the record contains
Pay, Leave, or Other Hours Adjustment Request forms; however, these forms
do not indicate whether complainant actually received the thirty-two
hours of overtime. In addition, while the final determination contains
several pages of additional payroll information, the final determination
does not contain an explanation of how this information reflects that
the agency compensated complainant for thirty-two hours of overtime,
pursuant to the settlement agreement.
Accordingly, the Commission VACATES the agency final determination finding
no breach and REMANDS this matter to the agency for further processing
in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
1) The agency shall supplement the record with an explanation of how the
payroll documentation contained in the record reflects that complainant
received the payment for thirty-two hours of overtime.
2) Within thirty (30) calendar days from the date this decision becomes
final, the agency shall issue a new determination, with appeal rights
to the Commission, as to whether it is in compliance with provision (1)
of the November 6, 2003 settlement agreement.
A copy of the agency's new determination must be sent to 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
(R0900)
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 (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
July 26, 2005
__________________
Date
1The record reflects that complainant's attorney initially sent the May
26, 2004 letter to the Commission's Washington Field Office. The letter
was subsequently forwarded to the Office of Federal Operations.
2The provision is numbered herein for ease of reference.