01a61656
09-13-2006
Nicolas Rivas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Nicolas Rivas,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A61656
Agency No. 1A007002005
DECISION
JURISDICTION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated January 3, 2006, finding that it
was in compliance with the terms of the September 21, 2005 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:
(1) The letter by the Office of Injury Compensation dated 4/19/05
will be reviewed to
determine if information included was or was not correct and is
appropriate. (Complainant) will be afforded the appropriate feedback.
(4) The issue of (complainant's) pay anomaly is referred to (a
management official) to determine if the calculations can and should be
done once again manually. An answer will be provided to complainant by
Friday, September 20, 2005.1
(5) (RMO: the manager of Labor Relations) will finish the review of
the pending grievances by October 28, 2005 and will provide feedback to
complainant.
By letter to the agency dated November 15, 2005, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Complainant identified
clauses 1, 4, and 5 as having been breached, but did not specifically
identify the nature of the breach. In its January 3, 2006 FAD,
the agency concluded that it was in compliance with the agreement.
Specifically, the agency found that, with regard to clause 1, the Injury
Compensation Office issued a letter on November 3, 2005 clarifying the
agency's position. With regard to clause 4, the agency acknowledged
that complainant did not receive a response by September 20, 2005, as
stipulated in the agreement, but that the appropriate officials had since
determined that complainant's pay anomaly could not be completed manually.
Furthermore, the agency found no error in the original calculations.
With regard to clause 5, the agency found that the matter had been
complied with. On appeal, complainant argues that corrections to his
pay were incorrectly calculated. The agency provided no brief on appeal.
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 complainant has provided insufficient
evidence to determine whether a breach of clauses 1 and/or 5 occurred.
While the FAD's response, addressing a November 3, 2005 clarification
of the agency's position, does not appear to address whether or not
the April 19, 2005 letter contained inaccurate information or whether
complainant was "afforded the appropriate feedback," complainant has not
specified exactly how he feels clause 1 was breached. As regards clause
5, the FAD contends that RMO complied with the agreement, and the record
shows that RMO wrote to complainant's representative on November 15,
2005 addressing complainant's pending grievances. Again, complainant
has not specified exactly how he feels clause 5 was breached.
Regarding clause 4, we conclude that the agency has substantially
performed its obligations under the settlement agreement. We reach this
conclusion despite the fact that the agency did not perform by September
20, 2005, as required by the agreement.
Failure to perform in accordance with deadlines specified in a contract
does not necessary constitute a breach of contract. "[T]ime is not
ordinarily of the essence of the contract unless made so by express
stipulation or unless there is something connected with the purpose of the
contract and the circumstances surrounding it which makes it apparent that
the parties intended that the contract must be performed at or within the
time named" Am Jur. 2d � 471. In this case, complainant did not insist on
including a "time is of the essence" clause in the settlement agreement.
Further, the Commission has held 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. Lazarte v. Department of the Interior,
EEOC Appeal No. 01954274 (April 25, 1996). It appears to us that the
agency acted in good faith to see that it complied with its obligations
under the settlement agreement. For these reasons we do not find that
the agency's late performance constituted a breach.
Finally, we note that complainant contends that the calculations to
correct his pay anomaly were incorrect. A review of the agreement,
however, reveals that the agency made no promise that its calculations
would meet with complainant's approval. As there is no indication the
agency acted in bad faith, complainant's disagreement with the agency's
calculations fails to state a claim of breach. Accordingly, we AFFIRM
the agency's FAD.
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 (S0900)
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 (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
September 13, 2006
__________________
Date
1 Clauses 2 and 3 of the settlement agreement are not in dispute and
are not addressed herein.
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01A61656
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A61656