01985398
05-26-2000
Arthur F. Moore, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Arthur F. Moore, )
Complainant, )
)
)
v. ) Appeal No. 01985398
) Agency No. 4G-730-0037-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Complainant timely appealed the agency's decision not to reinstate his
pre-complaint of unlawful employment discrimination that the parties
had settled.<1> See 64 Fed. Reg. 37,644, 37,659-37,660 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.402(a),
� 1614.405, and � 1614.504).
The record indicates that complainant was hired by the agency in 1971.
On September 27, 1995, complainant retired on disability due to his
on-the-job injury. At the time of the retirement, complainant was an
EAS-19, Labor Relation Specialist. The record also indicates that on
October 10, 1995, the Office of Workers' Compensation Programs (OWCP)
accepted complainant's occupational disease claim. On October 30,
1996, complainant was offered by the agency and received a Supervisor,
Customer Services (modified) position in Owasso, Oklahoma, EAS-19.
On November 18, 1996, complainant was assigned to an EAS-16 position
without change in his salary.
Thereafter, on December 11, 1996, complainant contacted an EEO Counselor
alleging that on November 18, 1996, he was denied reasonable accommodation
and subjected to harassment when: he was demoted to an EAS-16 position
from his EAS-19 position; his �enter-on-duty� date was changed from
7/10/1971 to 10/30/1996; he was not given pay adjustments in 2/1996 and
2/1997, �EVA,� and other entitlements; and he was denied his right to
buy back all leave lost. During counseling, the parties entered into
a settlement agreement on March 19, 1997, which provided, in part, that:
Complainant's pay would be adjusted with back pay as appropriate for
any across the board increases that would have been granted had he not
been off the rolls of the agency;
A Senior Personnel Services Specialist would seek a compensation decision
from the Southwest Area Office (SWA) on merit increases that he would
have received had he not been off the rolls of the agency;
The Senior Personnel Services Specialist would seek authority from the
SWA to establish for him an EAS-19, Labor Representative Specialist
position with exempt �Y� status in Owasso; and
A Senior Injury Compensation Specialist would look for alternative
positions by talking with each functional manager in each area outlined
in the letter dated 10-14-96 to see if any rehabilitation position was
available.
Thereafter, on June 4, 1997, complainant alleged that the agency breached
the settlement agreement and asked that his complaint be reinstated for
further processing. Specifically, complainant indicated that the agency
failed to return him to duty in a modified capacity as an EAS-19, and he
was demoted to an EAS-15 position. Complainant also indicated that at the
time of his disability in 1995, his salary was $53,756, and his present
salary, over two years later, was still $53,756. Complainant stated
that but for his being off the rolls of the agency due to the injury,
he would be making, at least, $55,928 as his base salary. Complainant
also stated that he should have received the minimum pay increase of 2%
in January 1996, and January 1997.
On June 15, 1998, the agency issued a decision finding no settlement
breach. Specifically, the agency stated that complainant received $612
backpay for the 1995 merit year, and the Senior Personnel Services
Specialist and the Senior Injury Compensation Specialist did seek
information, compensation, and guidance from the SWA. In its letter,
dated June 30, 1997, the agency stated that since complainant was not
on the rolls of the agency from the period of 09/16/95 through 09/13/96,
he was not eligible for a 2% merit performance increase and 7.5% of the
12/20/96 Economic Value Added bonus.
On appeal, complainant contends that under the terms of the settlement
agreement, he should have received a EAS-19 grade level, with its
top salary of $57,648. Complainant further contends that due to the
settlement breach, his salary is frozen at $53,756, and he is currently
losing $3,892 per year in base salary. Complainant indicates that he was
recently reassigned to Tulsa, Oklahoma as an Address Management Specialist
(AMS), EAS-15, a rehabilitation position without change in his salary.
EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant
believes that the agency failed to comply with the terms of a settlement
agreement, the complainant should notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of when the complainant knew or should
have known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point processing ceased.
The agency shall resolve the matter and respond to the complainant,
in writing. If the agency has not responded to the complainant, in
writing, or if the complainant is not satisfied with the agency's attempt
to resolve the matter, the complainant may appeal to the Commission for
a determination as to whether the agency has complied with the terms of
the settlement agreement or final decision.
The Commission has held that 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 addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule
when interpreting settlement agreements. The Commission's policy in
this regard is based on the premise that the face of the agreement best
reflects the understanding of the parties.
The record indicates that the agency's officials, identified in the
settlement agreement at issue, did seek a compensation decision, guidance,
and look for alternative positions for complainant pursuant to provisions
2, 3, and 4 of the settlement agreement. The record also indicates
that complainant received $612 for FY 1995 merit performance increase;
his position exempt status was changed to �Y�; and effective June 21,
1997, he received a rehabilitation AMS position in Tulsa.
With regard to provision 1 of the settlement agreement, there is no
evidence of record as to what constitutes an �across the board increase�
as set forth in provision 1 nor is there any evidence that complainant's
pay was adjusted for such an increase, if any. Based on the foregoing,
the record is insufficient for the Commission to determine whether the
agency breached provision 1 of the settlement agreement. Therefore,
the agency is Ordered, as stated below, to conduct a supplemental
investigation concerning the matter.
Finally, complainant claims that the agency breached the settlement
agreement when he did not receive a EAS-19 grade level with its top
salary of $57,648. However, the Commission finds that these matters are
not specifically provided in the settlement agreement and, therefore,
do not constitute a breach thereof.
Accordingly, the agency's decision finding no settlement breach is hereby
MODIFIED. The agency's finding of no breach regarding provisions 2, 3,
and 4 is hereby AFFIRMED. The agency's determination regarding provision
1 is VACATED and this matter is REMANDED to the agency for further
processing in accordance with this decision and applicable regulations.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
The agency shall conduct a supplemental investigation to define what
constitutes an �across the board increase� as set forth in provision 1
of the settlement. For example, whether such increases included cost of
living adjustments. Once defined, the agency shall determine whether
complainant's pay was adjusted accordingly, pursuant to provision 1 of
the March 19, 1997 settlement agreement.
Thereafter, the agency shall decide whether it breached the settlement
agreement at issue. If the agency finds settlement breach, the agency,
within thirty (30) calendar days of the date this decision becomes final,
shall specifically implement the March 19, 1997 settlement agreement
or reinstate complainant's case for further processing. If the agency
finds no settlement breach, the agency, within thirty (30) calendar days
of the date this decision becomes final, shall issued a final decision
finding no settlement breach.
A copy of documentation indicating the agency's specific implementation
of the settlement agreement or the notice of further processing of
complainant's pre-complaint and/or the final decision must be submitted
to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
May 26, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.