Clyde E. Walker, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western), Agency.

Equal Employment Opportunity CommissionJan 6, 2000
01994755 (E.E.O.C. Jan. 6, 2000)

01994755

01-06-2000

Clyde E. Walker, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western), Agency.


Clyde E. Walker, )

Complainant, )

)

v. ) Appeal No. 01994755

) Agency No. 4-E-840-0078-97

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(Pacific/Western), )

Agency. )

______________________________)

DECISION

On January 19, 1999, appellant filed a timely appeal with this Commission

from a final decision (FAD) by the agency dated December 16, 1998, finding

that it was in compliance with the terms of the August 31, 1998 settlement

agreement into which the parties entered. See 64 Fed. Reg. 37,644,

37,659, 37,660 (1999)(to be codified and hereinafter referred to as EEOC

Regulation 29 C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b); EEOC Order

No. 960, as amended.<1>

The settlement agreement provided, in pertinent part, that from 06-21-97

through 07-04-98, [complainant] will be paid and identified as a grade

PS-05, Step 0, Special Delivery Clerk. This record will appear in

[complainant's] official personnel file identified as an EEO settlement

agreement.

By letter to the agency dated December 1, 1998, complainant alleged that

the agency was in breach of the settlement agreement, and requested

that the agency specifically implement its terms. Specifically,

complainant alleged that the agency failed to pay him the difference

between $37,623.00 (PS-05, Step 0) and $35,178.00 (PS-03, Step 0)equaling,

$2445.00.

In its December 16, 1998 FAD, the agency concluded that it did not breach

the terms of the settlement agreement when it paid complainant $1767.74

because the agency had to subtract the proper withholdings.

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 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, the language of the agreement is clear and

unambiguous. Therefore, the Commission will apply this doctrine in

rendering its decision and thus will not consider extrinsic evidence.

The agreement, in relevant part, states, �from period 06-21-97 through

07-04-98 I will be paid and identified as a grade PS-05, Step 0, Special

Delivery Clerk�. In analyzing the above clause, the Commission finds that

in order for the agency not to have breached the agreement, it needed to

place complainant in the same position he would have been in if he was

initially compensated at the PS-05 Step 0 grade. It is undisputed that

the agency has compensated complainant. In fact, the agency has paid

complainant the exact amount to place him in the position he would have

been in if he was initially paid at the PS-05 Step 0 level. Therefore,

the

Commission finds that the agency did not violate the settlement agreement

by paying complainant $1767.74 as opposed to $2445.00. Accordingly,

the agency's decision is affirmed.<2>

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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 (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:

January 6, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant1On 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.

2Since complainant does not dispute the accuracy of the withholdings, the

Commission will defer to the agency that its calculations were precise.