01982155
03-10-1999
Jules D. Pearlstein, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Pacific/Western Agency.
Jules D. Pearlstein v. United States Postal Service
01982155
March 10, 1999
Jules D. Pearlstein, )
Appellant, )
)
v. ) Appeal No. 01982155
) Agency No. 4E-890-0008-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Pacific/Western )
Agency. )
______________________________)
DECISION
Appellant filed the instant appeal on January 12, 1998 alleging that
the agency breached a settlement agreement entered into by the parties
in September 1997.<1> On appeal, appellant alleges that the agreement
provided, in pertinent part, that 1) appellant would be placed in a light
duty assignment "consistent with his medical restrictions" within 10 days
of requesting such an assignment; and 2)appellant would receive a lump
sum payment of $1480.80 from the agency. Appellant contends that the
agency breached the agreement by failing to place him in a light duty
assignment within 10 days of his having requested such an assignment
and by failing to make the agreed-upon lump sum payment.
EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties shall be
binding on both parties. If the complainant believes that the agency
has failed to comply with the terms of a settlement agreement, then the
complainant shall notify the EEO Director of the alleged noncompliance
"within 30 days of when the complainant knew or should have known of the
alleged noncompliance." 29 C.F.R. � 1614.504(a). The complainant may
request that the terms of the settlement agreement be specifically
implemented or request that the complaint be reinstated for further
processing from the point processing ceased. Id.
The record shows that on September 24, 1997 appellant submitted a written
request for light duty to the agency. Under the terms of the agreement,
the agency had until October 4, 1997 to reassign Appellant. The record
contains a letter from the agency to appellant, dated October 2, 1997,
granting appellant's request for reassignment. Appellant asserts, and the
Commission finds, that appellant's representative did not receive the
October 2, 1997 letter until October 9, 1997, several days past the
October 4, 1997 deadline. Thus, as of October 5, 1997, the agency was in
breach of the agreement and the 30-day notification period provided for by
29 C.F.R. �1614.504(a) began to run.
The record shows that the first notification of breach of the
settlement agreement provided by appellant to the agency was a
facsimile communication, dated November 26, 1997, from appellant's union
representative to the agency.
The Commission finds that appellant should have known of the alleged
noncompliance with the "light duty" reassignment provision of the
settlement agreement on October 5, 1997. Appellant has not indicated
why he should not have known of the alleged noncompliance on October 5,
1997. The Commission finds that appellant notified the agency of the
breach on November 26, 1997. Appellant has not claimed that he notified
the agency of the breach prior to November 26, 1997. Therefore, we find
that appellant failed to raise this breach allegation within the 30-day
time frame set forth in �1614.504(a). Appellant has not provided any
explanation in the record as to why the time deadline for raising this
breach allegation should be extended.
The Commission finds that appellant failed to timely raise this allegation
of a settlement breach.
Even if the claim were not time-barred, appellant would be entitled to no
relief on this ground because the agency cured the alleged breach shortly
after it occurred. Pursuant to 29 C.F.R. �1614.504(b), an agency has 35
days from the receipt of an appellant's allegation of breach to resolve
the matter. The Commission has consistently interpreted that provision
to mean that an agency has 35 days within which to cure any breach
that has occurred. See Covington v. USPS, EEOC Appeal No. 01912311
(September 30, 1991). In the instant case, the alleged breach was
cured before appellant complained about it, when, on October 9, 1997,
he received his new assignment.
Appellant also contends that the agency breached the settlement agreement
by failing to pay him the agreed-upon lump sum. The record shows that
the first time appellant notified the agency of its noncompliance with
this aspect of the settlement agreement was in a letter dated December 9,
1997 from appellant's union representative to the agency.
The settlement agreement did not specify a deadline by which the
payment was to be made. In the absence of a specific time requirement,
the law will impose the requirement that the payment be made within a
"reasonable" amount of time. Restatement (Second) of Contracts � 204
(1981). It cannot be said on this record, and neither party contends,
that as of November 9, 1997, the agency was in breach of the agreement
for having unreasonably delayed making the agreed payment. No breach
having taken place, the 30-day notification period had not begun to run as
of November 9, 1997. 51 Am Jur 2d, Limitation of Actions �� 107 et seq.
The Commission finds that the 30-day notification period provided for by
29 C.F.R. �1614.504(a) had not run with respect to this claim of breach
when the agency received notification of its noncompliance on December
9, 1997. For this reason, appellant's claim with respect to the lump
sum payment is not time-barred.
However, in this instance as well, the agency has timely cured the
alleged breach. The agency has represented that appellant received the
payment in question on December 27, 1997. Appellant does not contend
otherwise in his brief, dated February 12, 1998. The breach having
been cured with 35 days of appellant having giving notice of the breach,
appellant is entitled to no further relief.
Finally, Appellant claims that in the course of the negotiations which
culminated in the settlement agreement, the agency made an oral promise
that appellant "would be assigned to a work location which would insure
he receives 40 hours of work" per week. Appellant asserts that the
agency has not complied with that promise.
Settlement agreements are contracts between the complainant and the
agency and it is the intent of the parties as expressed in the contract,
and not some unexpressed intention, that controls the contract's
construction. Eggleston v. Department of Veterans Affairs, EEOC Request
No. 05900795 (August 23, 1990); In re Chicago & E.I. Railway Co., 94 F.2d
296 (7th Cir. 1938). In reviewing settlement agreements to determine
if there is a breach, the Commission is often required to ascertain
the intent of the parties and will generally rely on the plain meaning
rule. Wong v. U.S. Postal Service, EEOC Request No. 05931097 (April 29,
1994) (citing Hyon v. U.S. 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, then its meaning must be determined
from the four corners of the instrument without resort to extrinsic
evidence of any nature. Id. (citing Montgomery Elevator v. Building
Engineering Service, 730 F.2d 377 (5th Cir. 1984)).
Upon review, we find that the agency has not breached the settlement
agreement in this respect. The settlement agreement only provides that
appellant would be reassigned to a light duty assignment "consistent
with his medical restrictions" if he so requested. There is no explicit
provision in the agreement that appellant would be scheduled for 40 hours
of work per week. Nor can any such requirement be inferred from the
circumstances leading up to settlement since, by appellant's admission,
at the time of signing the agreement "he was being employed 20 or less
hours per week." Appellant's brief at 4. Had the parties agreed on
the additional term for which appellant contends, they could easily have
incorporated it into the written agreement.
Accordingly, we AFFIRM the agency's decision that no breach of the
settlement agreement occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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.
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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.F.R.). 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:
March 10, 1999 ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1The agency states that the agreement, which is undated on its face, was
entered into on September 24, 1997. Appellant states that the agreement
was dated September 23, 1997.