0120081369
09-25-2009
Nestor L. Lopez-Rincon, Complainant, v. John E. Potter, Postmaster General United States Postal Service (Southeast Region), Agency.
Nestor L. Lopez-Rincon,
Complainant,
v.
John E. Potter,
Postmaster General
United States Postal Service (Southeast Region),
Agency.
Appeal No. 0120081369
Agency No. 4H-327-0108-07
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated August 7, 2008, finding that it was
in compliance with the terms of the May 29, 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.
BACKGROUND
The settlement agreement provided, in pertinent part, that:
(1) Effective five (5) months from the date of this settlement,
complainant's Route No: 31 will be rebuilt to the level of 40K if it
has not yet reached that level.
(2) Effective nine (9) months from the date of this settlement,
complainant's Route No: 31 will be rebuilt to the level of 43K if it
has not yet reached that level.
By letter to the agency dated November 8, 2007, complainant alleged that
the agency was in breach of the settlement agreement, and he requested
that the agency specifically implement its terms. See Complaint Letter
to EEO Manager, 11/08/07. Specifically, complainant alleged that the
agency breached the settlement agreement when it failed to rebuild
complainant's Route No: 31 to the level of 40K by October 29, 2007,
five months after the date of the settlement. Id. Complainant argued
that as a result of this breach he lost a total of two days of pay and
would continue to lose one day each week because he was working a six day
week instead of a five day week. Id. Complainant stated that when he
questioned his supervisor about the agency's non-compliance, he was told
that the matter would have to be resolved on November 24, 2007.1 Id.
In its August 7, 2008 FAD, the agency concluded that it did not breach
the settlement agreement. The agency determined that it complied with
the agreement because proper measures were taken to rebuild complainant's
route to 42K. The agency contends that the original request for a route
count was denied and an adjustment was submitted. Although the adjustment
was not submitted in time to meet the October 27, 2007 deadline from the
settlement agreement, arrangements were made to implement the adjustment
by November 24, 2007. The agency informed the complainant of this delay
and informed him that he would receive retroactive pay once the adjustment
was implemented. A final inspection resulted in complainant's route
being changed from a 42K route to a 48K route effective April 26, 2008.
See Rural Route Evaluation, 4/26/08. The complainant received the
difference between 40K and 42K from October 27, 2007 to November 26,
2007 and the difference between a 42K and a 43K route from February 29,
2008 to April 26, 2008. Thereafter, complainant received pay based on
the 48K route. Complainant was also permitted to select four days off
without pay between June 13-14, 2008 and June 26-27, 2008 due to his
allegation that he lost four days off because he was required to work
a six-day week.
On appeal, complainant reiterates the claims contained in his November
8, 2007 breach claim. Additionally, complainant contends that the
Postmaster never properly rebuilt his route, which caused him losses in
excess of $4000.00. In support of this position, complainant argues that
the same route at issue in the settlement agreement route was paid as a
48K route for 3 years prior to complainant instituting any EEO claims
against the agency. Complainant contends that if the route had been
paid as a 48K route, pay for the same route as a 42K route is improper.
It is complainant's position that he should be compensated for all the
time that he was paid at the 42K and 43K route rates. Complainant states
that he did not agree to be paid at a rate lower than what the route
called for in the settlement agreement.
In response to complainant's appeal, the agency blamed the delay in
compliance on the unusual nature of rural carrier pay calculations
and some local confusion on how to process payment to complainant.
The agency went on to state that complainant had now received all the
monies due him, and that it was therefore the agency's contention that
it had not breached the settlement. The agency asks the Commission to
affirm its August 7, 2008 FAD.
ANALYSIS AND FINDINGS
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 the agency is in substantial compliance
with the terms of the agreement. The Commission has found substantial
compliance with the terms of a settlement agreement where agencies
have committed, in good faith, a technical breach of a provision of the
agreement which did not undermine its purpose or effect. The Commission
has also found 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. Mopsick v. Department of Health and Human Services EEOC Appeal
No. 0120073654 (August 17, 2009) (citing Lazarte v. Department of the
Interior, EEOC Appeal No. 01954274 (April 25, 1996)); Sortino v. United
States Postal Service, EEOC Request No. 05950721 (November 21, 1996),
(citing Baron v. Department of the Treasury, EEOC Request No. 05930277
(September 30, 1993)) (two week delay in transfer of official letter
of regret rather than letter of apology found to be substantial
compliance).
In this matter, we find no evidence in the record that the agency's
delay in compensating complainant at the rate of a 42K and later at a
48K route rate was the result of bad faith or undermined the purpose
or effect of the agreement. Consequently, we determine that the agency
substantially complied with the provisions of the agreement when it
retroactively compensated complainant at the higher rate for the periods
of time he was paid at the lower rate on November 24, 2007, one month
after it was obligated to under the agreement, and when it permanently
adjusted complainant's pay rate to a 48K route as of April 26, 2008.
As for complainant's contention that he did not agree to be paid at a
lower rate than that of a 48K route, we find this contention inaccurate.
It may have been complainant's intent to be compensated for his
route at the same rate he had been prior to initiating the complaint
resolved by the settlement agreement, but it was not until the final
inspection revealed that complainant's route was actually a 48K route
that complainant raised this as an issue. The language of the settlement
agreement makes no mention of complainant's understanding of his current
route as a 48K route. We find the language of the agreement to be clear
and unambiguous on its face. Further, complainant had an opportunity
to raise his concerns with the route being paid at a rate lower than
that of a 48K route during settlement negotiation discussions, but he
failed to do so.
CONCLUSION
After a careful review of the record, the Commission affirms the agency's
final decision finding no breach of the settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
September 25, 2009
Date
1 The record reflects that the adjustment request was not received by the
Central Florida District in time to meet the October 27, 2007 target date.
The next possible date to implement the adjustment was November 24, 2007.
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0120081369
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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