0120120902
11-05-2012
Donald R. Hayward, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Donald R. Hayward,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120120902
Agency No. 4G752041007
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated September 29, 2011, finding that it 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 this complaint, Complainant worked as a Customer Service Supervisor at the Agency's post office facility in Coppell, Texas.
This matter initially came before the Commission pursuant to Complainant's appeal in Hayward v. United States Postal Service, EEOC Appeal No. 0120082812 (September 16, 2011). Therein, Complainant's challenged the Agency's finding that it had complied with the November 6, 2007 settlement agreement entered into by the parties in resolution of a complaint alleging that the Agency had subjected Complainant to unlawful discrimination. The settlement agreement provided, in pertinent part, that:
"The parties agree [Complainant] would be compensated from April 17, 2007 through September 26, 2007, eliminating the time need to schedule each (3) Fitness for Duty. It is also agreed to that [Complainant's Postmaster] will review [Complainant's] PS 991 and letter to [an identified Agency management official] requesting a career review."
Specifically, Complainant alleged that the Agency did not comply with the agreement when he did not receive the compensation provided in the settlement between the parties. In its final decision, the Agency indicated that it had not breached the agreement because at the time of Complainant's appeal, it was processing Complainant's payment. However, in its appeal decision, the Commission found that the Agency failed to provide evidence in the record indicating that Complainant was in fact compensated from April 17, 2007, through September 26, 2007 as provided in the settlement agreement between the parties. In that regard, the Commission remanded the matter to the Agency for supplementation of the record. The Agency was ordered to supplement the record with evidence showing whether and when it complied with the back pay provision in the settlement agreement. Specifically, the Agency was advised that the supplementation of the record shall include any documentation indicating whether and when Complainant was compensated from April 17, 2007 through September 26, 2007. The Agency was further advised to issue a new decision concerning whether or not it breached the November 6, 2007 settlement agreement.
In its September 29, 2011 FAD concerning the instant matter, the Agency again determined that it had not breached the settlement agreement. In reaching this conclusion, the Agency indicated that on or about August 13, 2008, Complainant received payment for the back pay in accordance with the settlement agreement, for the back pay period of April 17, 2007 through September 26, 2007. In further support of its determination, the Agency provided a copy of the check payment made out to Complainant dated August 13, 2008.
Complainant again alleged that the Agency failed to comply with the settlement agreement. Specifically, Complainant alleged that the Agency intentionally delayed in the processing of his payment by directing him to complete incorrect forms.
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).
In the instant case, the record indicates that Complainant received a back payment from the period April 17, 2007 through September 26, 2007 as provided in the settlement agreement between the parties. The agreement does not provide a specific time frame in which the Agency is obligated to carry out its obligations regarding the back pay payment to Complainant. The Commission has held that in the absence of a specific time frame in a settlement agreement setting forth how long a party is to engage in an act, it is interpreted to be for a reasonable amount of time. See Garcy v. U.S. Postal Service, EEOC Appeal No. 01A24396 (September 3, 2003); Parker v. Department of Defense, EEOC Request No. 05910576 (August 29, 1991). Here, we find that Complainant has not presented persuasive evidence that the Agency's nine month delay amounted to a breach of the instant agreement.
To the extent that Complainant alleges that he was intentionally directed to use the incorrect forms to process his back pay payment in reprisal for his EEO activity, or in furtherance of intentional discrimination, we note that the Commission has previously held that a complaint which alleges reprisal or further discrimination in violation of a settlement agreement is to be processed as a separate complaint and not as a breach of the settlement agreement. See Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225 (August 9, 1990); 29 C.F.R. � 1614.504(c). In the present case, we find that Complainant is raising new allegations of discrimination regarding incidents occurring subsequent to the settlement agreement. Therefore, we find that the Agency correctly found that it was not in breach of the agreement and that the new claims of discrimination should be treated as a new compliant.
CONCLUSION
Upon review, the Commission finds that the Complainant has failed to demonstrate that the Agency breached the agreement as alleged. In that regard, we find that the Agency's determination of compliance was proper. The Agency's decision is affirmed for the reasons set forth herein.
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), at 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
November 5, 2012
__________________
Date
2
0120120902
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120902