01A22333_r
06-24-2002
Eloise H. Forge, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Eloise H. Forge v. United States Postal Service
01A22333
June 24, 2002
.
Eloise H. Forge,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22333
Agency No. 1G-781-0084-01
DECISION
On March 15, 2002, complainant filed the present appeal with the
Commission alleging that the agency had breached the settlement agreement
entered into by the parties.
Complainant and the agency entered into a settlement agreement on August
21, 2001. The settlement agreement provided, in pertinent part, that:
(4) Employer agrees to reimburse [complainant] for five (5) pay periods
at $16.71 per hour straight pay totaling $6,684.00.
By letter to the agency dated November 30, 2001, complainant alleged
that the agency was in breach of the settlement agreement, and requested
that the agency reinstate her EEO complaint for further processing.
Specifically, complainant alleged that the agency failed to pay her the
agreed upon amount of $6,684.00.
When the agency did not respond to her breach claim, complainant filed the
present appeal with the Commission. In her appeal, complainant argued
that the settlement agreement made no mention or reference to mandatory
legal deductions affecting the total back pay agreed to at the time the
agreement was signed. Complainant claims that the agency waived the
deductions due based on the fact that complainant owed her creditors
a large sum of money and was in the process of filing for bankruptcy.
Thus, complainant requests that the agency be required to honor the
total back pay amount listed in the settlement agreement.
Subsequent to complainant's appeal, the agency issued a final decision
dated April 1, 2002, in which it concluded that it did not breach the
settlement agreement. The agency stated that because the agreement
required it to issue back pay to complainant, in accordance with the
Employee and Labor Relations Manual (ELM) section 436, it was required
to deduct basic compensation, allowances, differentials, and employment
benefits that complainant would have earned during the period at issue.
Thus, the agency stated that it reduced the $6,684.00 gross pay amount by
deducting benefits and taxes that were part of complainant's normal pay
check. Additionally, the agency stated that any employment complainant
accepted during the period at issue was offset.
The record contains a copy of a back pay decision/settlement worksheet
the agency used to determine complainant's payment pursuant to the
settlement agreement. According to the worksheet, the agency determined
complainant's gross back pay to be $3,654.03. Based on this amount,
the agency determined complainant's liability for social security,
retirement, medicare, federal taxes, and union dues, and deducted these
amounts from the back pay issued to complainant. As a result the agency
issued complainant a check in the amount of $2,231.41.
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 present case, we find that the agency breached the August 21,
2001 settlement agreement. The agreement stated that the agency was to
reimburse complainant for five (5) pay periods at $16.71 per hour straight
pay totaling $6,684.00. We find that in making its calculations the
agency improperly determined complainant's gross back pay to be $3,654.03.
The terms of the settlement agreement clearly provided that complainant's
gross back pay would be $6,684.00. We note that since the agreement did
not specify that the back pay was to be pre- or post-taxes, we find that
complainant has failed to show how provision (4) was breached. Although
we find the agency properly concluded that social security, retirement,
medicare, and federal taxes could be deducted from the back pay amount,
we find that because the agency made the relevant calculations based on
the $3,654.03 gross amount, the agency must recalculate the deductions
based on a gross back pay amount of $6,684.00. Further, we find that
the agency improperly deducted union dues from the amount of back pay
due to complainant.
Accordingly, the agency's decision that it did not breach the agreement is
REVERSED and the matter is REMANDED to the agency for further processing
in accordance with the Order below.
ORDER
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall implement provision (4) of the settlement
agreement. The agency is ordered to recalculate the amount of back pay
due complainant pursuant to provision (4) of the agreement as interpreted
in the instant decision. Thereafter, the agency shall pay complainant
for the outstanding amount after deducting the $2,231.41 already paid
to complainant. The new calculations for the amount to be paid shall
be based on a gross back pay amount of $6,684.00. Within 30 calendar
days of the date this decision becomes final, the agency shall issue
a new decision addressing whether it has complied with provision (4)
of the settlement agreement. The agency shall provide a copy of the
new decision to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 24, 2002
__________________
Date