Ella Randolph, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 20, 2000
01a00640 (E.E.O.C. Mar. 20, 2000)

01a00640

03-20-2000

Ella Randolph, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Ella Randolph, )

Complainant, )

)

v. ) Appeal No. 01A00640

) Agency Nos. 2K-1300-91

William J. Henderson, ) 2K-1138-91

Postmaster General, ) 2K-1062-92

United States Postal Service, )

Agency. )

_______________________________ )

DECISION

Appellant filed the instant appeal with the Commission on October 5, 1999

alleging that the agency had not complied with a settlement agreement

entered into on June 25, 1991.<1> The settlement agreement entered into

on June 25, 1991 provided:

[Complainant] will be compensated for the difference between the number

of hours that she worked and the average number of hours worked by other

P.t.f.'s [part-time flexibles] in her pay location. This covers pay

period 11/90 thru pay period 4/91. There will not be reprisals for the

filing of this EEO complaint.

Complainant's breach of settlement allegation was first raised on August

29, 1991 and has been the subject of five prior Commission decisions.

Randolph v. United States Postal Serv., EEOC Appeal No. 01970008 (Apr. 8,

1999). The Commission incorporates the entire Background portion

of Randolph v. United States Postal Serv., EEOC Appeal No. 01941542

(May 19, 1995), and the entire recitation of the procedural history

set forth in Randolph, EEOC Appeal No. 01970008, into this decision.

The Background portion of Randolph, EEOC Appeal No. 01941542 and

the decision in Randolph, EEOC Appeal No. 01970008, fully set forth

the procedural history of the settlement breach allegation and the

Commission's attempts to have the agency recalculate the amount to be

paid to complainant pursuant to the agreement. Id.

By letter dated March 15, 2000 the agency submitted to the Commission

calculations of the amount it paid pursuant to the settlement agreement.

The agency found:

The difference of average pay hours of other employees in complainant's

pay location for pay period 11, 1990 to pay period 4, 1991 was 259.67

regular hours. Complainant has been reimbursed in the amount of 335.2

regular hours (which is an overpayment of 75.53 regular hours).

The average overtime hours was 217.52 hours. Complainant was paid for

202.75 overtime hours (an underpayment of 14.77 overtime hours).

Complainant was not paid night differential for the 259.67 regular hours.

Night differential was 10% of the hourly rate.

The agency argues that the overpayment of 75.53 regular hours exceeds the

underpayment of night differential plus underpayment of 14.77 overtime

hours. The agency converted the night differential underpayment and

the 14.77 overtime hours underpayment into regular hours as follows:

Night differential = 10% x 259.67 (amount due in regular hours) = 25.97

regular hours

Overtime rate = �time and one half�; 14.77 hours (overtime underpayment)

x 1.5 (overtime rate) = 22.13 regular hours

25.97 (regular hours conversion of night differential underpayment) +

22.13 (regular hours conversion of overtime underpayment) = 48.10 hours

of regular hours underpayment

The agency argues that because it has overpaid complainant 75.53 in

regular hours, the underpayment in night differential and overtime,

which is equivalent to 48.10 regular hours, does not constitute a breach

of the agreement, because in sum, there is still a total overpayment to

complainant.

The regulation set forth at 64 Fed. Reg 37,644, 37,660 (1999) (to be

codified as and hereinafter cited as 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.

Settlement agreements are contracts between the appellant 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

(Aug. 23, 1990); In re Chicago & E.I. Ry. 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. United

States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing

Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 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 any resort to extrinsic evidence

of any nature. Id. (citing Montgomery Elevator v. Building Engineering

Service, 730 F.2d 377 (5th Cir. 1984)).

The Commission's review of the record shows that the agency has made a

good faith effort in calculating the amounts due to complainant under the

settlement agreement and that the agency's calculations are supportable by

the record. The Commission notes that the settlement agreement did not

specifically provide an amount (or number of pay hours) due complainant.

The Commission's review of the calculations and of the documentation

submitted by the agency shows that the agency slightly miscalculated

the conversion of 14.77 hours of overtime underpayment to regular

hours. The correct conversion (14.77 x 1.5) is 22.155 regular hours.

This slight change does not alter the agency's conclusion that the

agency's overpayment of regular hours exceeded the underpayment for night

differential and overtime. Therefore, after examining the record as a

whole, we find that complainant has failed to meet her burden to show

that the agency has failed to comply with provision 2 of the settlement

agreement.

The agency's decision finding that complainant failed to show that the

agency breached provision 2 of the settlement agreement is AFFIRMED.

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).

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:

March 20, 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

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.