01a45145_r
02-17-2005
Robert C. Huston, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert C. Huston v. United States Postal Service
01A45145
February 17, 2005
.
Robert C. Huston,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45145
DECISION
Complainant filed a timely appeal with this Commission from an agency
final determination dated June 7, 2004, finding that it was in compliance
with the terms of two settlement agreements, dated December 5, 2003
and May 27, 2004. The Commission accepts the appeal. See 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The December 5, 2003 settlement agreement ( SA1), captioned as resolving
complaint numbers: 1-H-339-0001-04, 1-H-339-0002-04, 1-H-339-0003-04,
1-H-339-0004-04, and 1-H-339-0001-05, provided, in pertinent part, that:
Lost/used �LWOP� and/or sick leave shall be adjudicated through �OWCP:�
1 day (8 hours) overtime make-up shall be granted. 1 day (8 hours)
penalty overtime make-ups shall be granted.
Letter of warning shall be expunged 2 months from date of resolve
provided there are no unscheduled absences. In the event there is an
unscheduled absence after today's date, the letter of warning shall
be expunged 4 months from today's date provided proper documentation
is submitted for each unscheduled absence. In the event proper
documentation is not submitted, the letter of warning will remain
in effect for one year. There can also be no recurrence of improper
conduct during this period of time.
All grievances regarding these issues are withdrawn.
By written notice to the agency, date stamped as received on May 10,
2004, complainant claimed that the agency breached SA1. Specifically,
complainant alleged that on January 28, 2004, as per SA1, he worked 8
hours of penalty overtime, but was not paid. Complainant further contends
that he submitted two payroll adjustment requests, but to no avail.
Complainant asserts that in addition to his breach claim, he also filed
another grievance and another EEO complaint regarding this matter.
The May 27, 2004 settlement agreement (SA2), captioned as resolving
complaint # 1-H-339-0013-04,<1> provided, in pertinent part, that:
(1) If the payroll adjustment for 8 hours of penalty pay and 7.5 hours
of night differential is not included in the pay for June 4, 2004, a
payroll advance shall be processed expeditiously upon notification by
the complainant in accordance with the Collective Bargaining Agreement.
(2) It is agreed that the [complainant] shall be paid 40 hours at the
straight time rate, 12 hours at the overtime rate, 16 hours of Sunday
premium and 45 hours of night differential, 40 hours of straight-time
pay, 2 hours of overtime pay and the corresponding Sunday premium and
night differential remain in dispute, which will be adjudicated in EEO
complaints currently pending. It is agreed that grievance #2004-210
shall be withdrawn.
In its June 9, 2004 final determination, (which amended a June 7, 2004
determination), the agency concluded that it completed all actions to
comply with SA1. In particular, it determined that on June 4, 2004,
complainant received $244.00 as a pay advance, which he signed for on
June 4, 2004. Additionally, in apparent reference to provision 2 of SA2,
the agency determined that complainant signed a form �PS 2240" on June 5,
2004. For these reasons, the agency denied complainant's breach claim.
By letter dated June 9, 2004, complainant responded to agency
correspondence dated June 3, 2004<2> and June 7, 2004. Complainant
disputed the agency's determination that it did not breach SA1 and SA2.
Complainant asserted that the delay in receiving his payment constitutes
a breach. Additionally, in particular reference to agency correspondence
dated June 3, 2004, complainant contends that in SA2, the agency waived
its right to close pending EEO complaints, and as a result, the agency
agreed to continue processing pending cases regardless of the issue.
In correspondence dated June 23, 2004, the agency acknowledged
complainant's June 9, 2004 correspondence, identifying the June 3,
2004 correspondence as a joint processing letter. The agency informed
complainant that its position was unchanged regarding its no breach
determination (June 9, 2004 final determination) and the joint processing
of his complaints (June 3, 2004 letter).
On appeal, complainant repeats that the agency improperly consolidated
and closed the complaints captioned in SA1 because the language of SA2
constitutes a waiver of the agency's right to withdraw these complaints.
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 record contains a memorandum dated June 10, 2004, outlining the
agency's efforts for compliance with the terms of SA1. Therein, the
agency indicated that provision 1 was invalid because complainant did not
have an approved claim with the Department of Labor. Regarding provision
2, the agency indicated that complainant worked a non-scheduled day on
January 27, 2004, and that he received appropriate pay for this day.
Additionally, the agency indicated that complainant also worked a second
non-scheduled day on January 28, 2004, for 8 hours of make-up penalty
overtime. Regarding provision 3, the agency indicated that complainant
satisfied the conditions of this term, and that the letter of warning
had been expunged. Regarding provision 4, the agency indicated that it
sent correspondence to its labor relations office on December 8, 2003,
and advised them to withdraw the pertinent grievances.
Regarding SA2, the agency provides documentation that complainant was
paid for his work on January 28, 2004, as referenced in its June 9,
2004 final determination.
Complainant argues that the agency's delay in paying him for his work
on January 28, 2004, constitutes a breach; however, the Commission
determines that the agency tendered payment to complainant shortly after
he filed his breach claim. Based on this evidence, we find that the
agency substantially complied with provision 2 of SA1 and provision 1
of SA2. Moreover, we find that the agency submits documentary evidence
showing that the �undisputed� payments referenced in provision 2 of SA2
were approved for processing on June 5, 2004. We note that on appeal,
complainant makes no further contentions alleging the agency's failure
to follow through on this action.
Finally, the Commission has considered complainant's contention
that provision 2 of SA2 must be read as superceding SA1; however
we disagree, and do not find that the language of SA2 allows for
such an interpretation. The language in SA2, upon which complainant
relies, provides that certain payments that �remain in dispute� will
be adjudicated in EEO complaints that are �currently pending.� The
Commission determines that SA2 does not expressly provide for an
agency waiver of its right to close the complaints captioned in SA1.
The agency's closure of those captioned complaints was part of the
consideration received by the agency in exchange for undertaking various
agency obligations identified in SA1; and the closure of those complaints
cannot be deemed as waived without express language to this effect.
Accordingly, for reasons set forth above, we find no breach of either
settlement agreement at issue here, and we AFFIRM the agency's final
determination.
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
February 17, 2005
__________________
Date
1This complaint is not of record. However, based on complainant's
statements, it appears that in addition to the instant breach claim,
he filed an EEO complaint concerning, at least in part, the agency's
failure to pay him for the second unscheduled day he worked (January 28,
2004), pursuant to provision 2 of SA1. We surmise that this may be the
complaint resolved by SA2.
2This correspondence is not of record on appeal.