0120122953
12-18-2012
Kulwant K. Lakhat, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Kulwant K. Lakhat,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120122953
Agency No. 1K-209-0018-11
DECISION
Complainant filed a timely appeal with this Commission from a final Agency determination (FAD) dated June 14, 2012, finding that the Agency was in compliance with the terms of the 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.
BACKGROUND
At the time of events giving rise to her notice of breach, Complainant worked as a Mail Handler at the Agency's Suburban Maryland Processing & Distribution Center (P&DC) in Gaithersburg, Maryland.
On September 13, 2011, Complainant and the Agency entered into a settlement agreement to resolve her EEO claim. The settlement agreement provided, in pertinent part, that:
1. With the receipt of Ms. Kulwant Lakhat's accepted on the job claim and/or worsening of condition number, a pay adjustment shall be done to allow for the work hours missed to be paid through OWCP [Office of Workers' Compensation Programs]. It is understood that the period in question is between June 22 - July 28, 2011 for the Three (3) hours per day and from July 29, 2011 to September 12, 2011 for two (2) hours per day worked;
2. In the event that OWCP and the Department of Labor do not accept Ms. Lakhat's claim, [the Manager of Distribution Operations (MDO)] shall do a pay adjustment on Form 2240 [Pay, Leave, or Other Hours Adjustment Request] to pay Ms. Lakhat the work hours missed as outlined above in Paragraph number (1). If [the MDO] does not personally enter the adjustment, he will delegate the responsibility to his supervisor.
On May 11, 2012, Complainant alleged that the Agency breached the settlement agreement, generally writing she was not paid in accordance with it.
In its June 14, 2012, FAD the Agency found that term 1 of the settlement agreement did not apply because OWCP terminated Complainant's claim. Referring to pay adjustments allegedly completed in January 2012, which allegedly resulted in a payment of $660.54, the Agency found the adjustments required by the settlement agreement were made. But the FAD also referred to additional adjustments which were requested on PS Forms 2240 that were signed by Complainant and a supervisor in April 2012. These later requested adjustments are in the record.
In her July 2012 appeal, Complainant argues that the Agency breached term 2 of the settlement agreement. She argues that while she signed the PS Forms 2240 (in April 2012), she received no compensation pursuant to the settlement agreement. She argues merely completing the PS Forms 2240, without payment, does not discharge the obligation in the settlement agreement.
In its October 2012 opposition to the appeal the Agency writes that due to a number of administrative errors pay adjustment requests needed to be resubmitted after the initial FAD, and in accordance with the settlement agreement, on October 4, 2012, payment was made to Complainant. The record contains a copy of the check and "check stub." The stub indicates the check was for a back pay award for June 22, 2011 to September 12, 2011 in accordance with EEO case 1K-209-0018-11. It indicates the check was for 137.52 base hours and 54.78 night differential hours. The Agency calculated gross wages of $3,066.55, and issued Complainant a check for net wages in the amount of $1,067.26.
ANALYSIS
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 (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. Dep't 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. U.S. Postal Serv., 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).
When Complainant initially filed her appeal the Agency drafted request(s) to adjust Complainant's pay in accordance with the settlement agreement, at least one of which contained adjustment calculations which Complainant signed, but only partial payment or no payment had actually been made. Thereafter, the Agency issued Complainant a check which set out the number of hours for which Complainant was being paid under the settlement agreement, and contained other payment calculations.
Complainant does not dispute the payment calculations. While the Agency's payment of back pay under the settlement agreement was delayed, we find it is now in substantial compliance with the settlement agreement.
Accordingly, the FAD is AFFIRMED.
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 (S0610)
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 (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
December 18, 2012
__________________
Date
2
0120122953
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122953