Nestor L. Lopez-Rincon, Complainant,v.John E. Potter, Postmaster General United States Postal Service (Southeast Region), Agency.

Equal Employment Opportunity CommissionSep 25, 2009
0120081369 (E.E.O.C. Sep. 25, 2009)

0120081369

09-25-2009

Nestor L. Lopez-Rincon, Complainant, v. John E. Potter, Postmaster General United States Postal Service (Southeast Region), Agency.


Nestor L. Lopez-Rincon,

Complainant,

v.

John E. Potter,

Postmaster General

United States Postal Service (Southeast Region),

Agency.

Appeal No. 0120081369

Agency No. 4H-327-0108-07

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated August 7, 2008, finding that it was

in compliance with the terms of the May 29, 2007 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

The settlement agreement provided, in pertinent part, that:

(1) Effective five (5) months from the date of this settlement,

complainant's Route No: 31 will be rebuilt to the level of 40K if it

has not yet reached that level.

(2) Effective nine (9) months from the date of this settlement,

complainant's Route No: 31 will be rebuilt to the level of 43K if it

has not yet reached that level.

By letter to the agency dated November 8, 2007, complainant alleged that

the agency was in breach of the settlement agreement, and he requested

that the agency specifically implement its terms. See Complaint Letter

to EEO Manager, 11/08/07. Specifically, complainant alleged that the

agency breached the settlement agreement when it failed to rebuild

complainant's Route No: 31 to the level of 40K by October 29, 2007,

five months after the date of the settlement. Id. Complainant argued

that as a result of this breach he lost a total of two days of pay and

would continue to lose one day each week because he was working a six day

week instead of a five day week. Id. Complainant stated that when he

questioned his supervisor about the agency's non-compliance, he was told

that the matter would have to be resolved on November 24, 2007.1 Id.

In its August 7, 2008 FAD, the agency concluded that it did not breach

the settlement agreement. The agency determined that it complied with

the agreement because proper measures were taken to rebuild complainant's

route to 42K. The agency contends that the original request for a route

count was denied and an adjustment was submitted. Although the adjustment

was not submitted in time to meet the October 27, 2007 deadline from the

settlement agreement, arrangements were made to implement the adjustment

by November 24, 2007. The agency informed the complainant of this delay

and informed him that he would receive retroactive pay once the adjustment

was implemented. A final inspection resulted in complainant's route

being changed from a 42K route to a 48K route effective April 26, 2008.

See Rural Route Evaluation, 4/26/08. The complainant received the

difference between 40K and 42K from October 27, 2007 to November 26,

2007 and the difference between a 42K and a 43K route from February 29,

2008 to April 26, 2008. Thereafter, complainant received pay based on

the 48K route. Complainant was also permitted to select four days off

without pay between June 13-14, 2008 and June 26-27, 2008 due to his

allegation that he lost four days off because he was required to work

a six-day week.

On appeal, complainant reiterates the claims contained in his November

8, 2007 breach claim. Additionally, complainant contends that the

Postmaster never properly rebuilt his route, which caused him losses in

excess of $4000.00. In support of this position, complainant argues that

the same route at issue in the settlement agreement route was paid as a

48K route for 3 years prior to complainant instituting any EEO claims

against the agency. Complainant contends that if the route had been

paid as a 48K route, pay for the same route as a 42K route is improper.

It is complainant's position that he should be compensated for all the

time that he was paid at the 42K and 43K route rates. Complainant states

that he did not agree to be paid at a rate lower than what the route

called for in the settlement agreement.

In response to complainant's appeal, the agency blamed the delay in

compliance on the unusual nature of rural carrier pay calculations

and some local confusion on how to process payment to complainant.

The agency went on to state that complainant had now received all the

monies due him, and that it was therefore the agency's contention that

it had not breached the settlement. The agency asks the Commission to

affirm its August 7, 2008 FAD.

ANALYSIS AND FINDINGS

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 the instant case, we find that the agency is in substantial compliance

with the terms of the agreement. The Commission has found substantial

compliance with the terms of a settlement agreement where agencies

have committed, in good faith, a technical breach of a provision of the

agreement which did not undermine its purpose or effect. The Commission

has also found that the failure to satisfy a time frame specified in a

settlement agreement does not prevent a finding of substantial compliance

of its terms, especially when all required actions were subsequently

completed. Mopsick v. Department of Health and Human Services EEOC Appeal

No. 0120073654 (August 17, 2009) (citing Lazarte v. Department of the

Interior, EEOC Appeal No. 01954274 (April 25, 1996)); Sortino v. United

States Postal Service, EEOC Request No. 05950721 (November 21, 1996),

(citing Baron v. Department of the Treasury, EEOC Request No. 05930277

(September 30, 1993)) (two week delay in transfer of official letter

of regret rather than letter of apology found to be substantial

compliance).

In this matter, we find no evidence in the record that the agency's

delay in compensating complainant at the rate of a 42K and later at a

48K route rate was the result of bad faith or undermined the purpose

or effect of the agreement. Consequently, we determine that the agency

substantially complied with the provisions of the agreement when it

retroactively compensated complainant at the higher rate for the periods

of time he was paid at the lower rate on November 24, 2007, one month

after it was obligated to under the agreement, and when it permanently

adjusted complainant's pay rate to a 48K route as of April 26, 2008.

As for complainant's contention that he did not agree to be paid at a

lower rate than that of a 48K route, we find this contention inaccurate.

It may have been complainant's intent to be compensated for his

route at the same rate he had been prior to initiating the complaint

resolved by the settlement agreement, but it was not until the final

inspection revealed that complainant's route was actually a 48K route

that complainant raised this as an issue. The language of the settlement

agreement makes no mention of complainant's understanding of his current

route as a 48K route. We find the language of the agreement to be clear

and unambiguous on its face. Further, complainant had an opportunity

to raise his concerns with the route being paid at a rate lower than

that of a 48K route during settlement negotiation discussions, but he

failed to do so.

CONCLUSION

After a careful review of the record, the Commission affirms the agency's

final decision finding no breach of the settlement agreement.

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

September 25, 2009

Date

1 The record reflects that the adjustment request was not received by the

Central Florida District in time to meet the October 27, 2007 target date.

The next possible date to implement the adjustment was November 24, 2007.

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0120081369

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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