0120080188
03-10-2008
Steven C. Heaton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Steven C. Heaton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080188
Agency No. 4E680004207
DECISION
JURISDICTION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated January 11, 2008, finding that it was
in compliance with the terms of the April 27, 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.
The settlement agreement provided, in pertinent part, that:
(a) [Complainant] and [the agency] agree that they will continue
the D.R.A.C. process to determine if reasonable accommodation can be
made for the Mechanic Level 8 position which he has applied for;
(b) If the D.R.A.C. process determines that [complainant] can have
the job, [the agency] shall promote him back to date of original offer
and pay him out of schedule and Sunday pay for the hours that would have
been worked in the mechanics position.
By letter to the agency dated September 25, 2007, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Therein, complainant alleged
that when he inquired about the back pay he was due under the agreement,
he was advised by an agency official that the agency was "working on
the proper avenue of payment" complainant was due under the agreement.
In his statement on appeal, the complainant further indicates that the
agency failed to provide him the proper out of schedule and Sunday pay
in accordance with the settlement agreement. In his appeal statement
complainant correctly argues that the agreement between the parties
provided that he be promoted retroactively to March 17, 2007. However,
complainant claims in addition, that as a result of the retroactive
promotion, he should be eligible for a pay increase as of November 2007
and not March 2008 as reflected by the PS Form 50 provided in the record.
Complainant maintains that a union contract and agency policy require
that his pay be increased 30 weeks after a promotion like the one he
received as a result of the April 27, 2007 settlement.
In its January 11, 2008 FAD, the agency concluded that it had not
breached the agreement as alleged. The agency states in its final
decision that complainant was promoted retroactively and his personnel
form was adjusted to reflect the promotion. In addition, the agency
states that on October 26, 2007, complainant received a lump sum payment
of $5,126.49 representing the out of schedule and Sunday pay he was due,
retroactive to March 17, 2007.
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, the record indicates that the agency performed its
obligations under the agreement. Complainant has provided no evidence
that the agency was obligated under the instant agreement to increase
his pay 30 weeks after he received the promotion provided as a result of
the agreement. The record is devoid of any evidence that complainant
was not promoted as provided in the agreement or that he failed to
receive the pay he was entitled to under the agreement. The agency has
provided the Commission with copies of personnel documents reflecting
the adjustment to complainant's pay and retroactive placement into the
mechanics position at issue herein.
For the reasons set forth herein, the Commission finds that complainant
has failed to demonstrate that the agency breached the agreement
as alleged. Accordingly, the agency's determination of compliance
is affirmed.
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
March 10, 2008
__________________
Date
2
0120080188
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120080188