United States Court of Appeals for the Federal Circuit
November 18, 1999
KARL R. SCHOETZOW, PETITIONER,
UNITED STATES POSTAL SERVICE, RESPONDENT.
Before Plager, Schall, and Gajarsa, Circuit Judges.
The opinion of the court was delivered by: Per Curiam
Mr. Karl R. Schoetzow filed a petition for enforcement of a settlement agreement he had entered into with the United States Postal Service ("Postal Service" or "agency"). In an initial decision (Docket No. SF-0752-98-0010-C-1) dated July 30, 1998, the Merit Systems Protection Board ("Board") denied his petition for enforcement. The initial decision became final on March 1, 1999. We affirm the Board's final decision.
In February of 1998, Mr. Schoetzow entered into a "Last Chance Agreement" with the Postal Service. The terms of the Agreement provided that Mr. Schoetzow's notice of removal would be reduced to a suspension, that he would be reassigned to a new location as a full-time mail handler, and that his work hours would be 2:30 p.m. to 11:30 p.m. In return, Mr. Schoetzow, among other things, agreed to cease any abusive and profane behavior and to waive his appeal rights regarding any future removal action.
The Agreement was adopted by the Board on February 2, 1998 (Docket No. SF-0752-98-0010-I-1), and the Board explicitly retained jurisdiction for enforcement purposes. No petition for review was filed before the Board's decision became final.
After the decision became final, Mr. Schoetzow complained to the Board that the Postal Service was not complying with the Agreement because they were paying him at the wrong rate and because his assigned work shift began at 3:00 p.m. instead of 2:30 p.m., as provided in the Agreement. The Board treated these complaints as requests for enforcement of the Agreement. Before the Board considered the enforcement action, the Postal Service raised Mr. Schoetzow's pay rate. The starting time for his work shift, however, was not changed.
After considering Mr. Schoetzow's petition for enforcement, the Board concluded that Mr. Schoetzow's pay rate was now higher than the level required by the Agreement. The Board also concluded that the 30 minute difference in starting time of which Mr. Schoetzow complained was not a material breach of the Agreement since all mail handlers were made aware through a 1990 Memorandum of Understanding that the Postal Service needed some flexibility to schedule work shifts for mail handlers to ensure prompt mail delivery. Thus, the Board denied Mr. Schoetzow's petition for enforcement.
Mr. Schoetzow now appeals from the Board's final decision to deny his petition for enforcement. Mr. Schoetzow argues that the Postal Service failed to comply with paragraphs 5 and 6 of the Last Chance Agreement because they did not pay him for the time he was suspended and because they assigned him to a work shift that began at 3:00 p.m. instead of 2:30 p.m. In addition, he argues that paragraph 12 of the Agreement is a violation of his rights as a Postal employee because it waives his right to appeal from a subsequent removal action.
Mr. Schoetzow first argues that paragraph 5 was breached because he was not awarded back pay for the period he was suspended. Paragraph 5 of the Agreement provides: "The subject Notice of Proposed Removal dated January 22, 1997 is hereby reduced to a 126 day suspension beginning September 26, 1997 and ending January 30, 1998." There is clearly no mention of pay for the suspension period in the Agreement.
In addition, Mr. Schoetzow argues that paragraph 6 was breached because his work shift started at 3:00 p.m. Paragraph 6 of the Agreement provides in relevant part: "The Appellant's hours will be 2:30 p.m. to 11:30 p.m. with Sunday/Monday, as his non-scheduled days." A 30 minute variance in the start time of his work shift does not amount to a material breach of the Agreement. See Stone Forest Indus. v. United States, 973 F.2d 1548, 1551-52 (Fed. Cir. 1992) ("Not every departure from the literal terms of a contract is sufficient to be deemed a material breach. . . .").
Mr. Schoetzow also argues on appeal that paragraph 12 of the Agreement renders the Agreement invalid or unlawful. When Mr. Schoetzow first raised this argument in May of 1998, the Board treated it as a petition for review of the February 1998 initial decision (Docket No. SF-0752-98-0010-I-1) that adopted the Agreement. Since only the June 1998 decision (Docket No. SF-0752-98-0010-C-1), which became final on March 1, 1999, and which concerned only the issue of enforcement, is before us, we need not reach the invalidity or unlawfulness issues.
Because the Board's decision to deny Mr. Schoetzow's petition for enforcement was not arbitrary, capricious, procedurally incorrect, unsupported by substantial evidence, or not in accordance with law, we affirm the decision. See 5 U.S.C. § 7703(c) (1994).
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