Frank A. Barnes, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 30, 1999
01986412 (E.E.O.C. Nov. 30, 1999)

01986412

11-30-1999

Frank A. Barnes, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Frank A. Barnes, )

Complainant, )

)

v. ) Appeal No. 01986412

) Agency No. 1F-924-0016-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

_______________________________ )

DECISION

Complainant filed the instant appeal claiming that the agency breached

provisions 5(A), 5(D), 5(E), and 5(F), of a settlement agreement entered

into by the parties on May 19, 1998.<1> Complainant's appeal is dated

August 21, 1998. The agency issued a decision dated August 26, 1998

finding that it did not breach the agreement.

The settlement agreement provided:

[5]A. The Complainant shall be compensated with a lump sum payment of

$8,000.00 (less taxes).

. . . .

The Agency agrees to adjust the complainant's sick leave for the

following dates, from AWOL or LWOP to Sick Leave: 10-21-96, 11-4,

11-5, 11-6-96, 6-3, 6-4, and 6-5, and 6-14-96. In addition, the

complainant will be compensated for .73 hours at the straight time

rate for 1-31-97 and 8 hours of administrative leave for 10-23-96.

The Agency agrees to rescind and replace the complainant's FY-96

merit evaluation with a new retroactive evaluation for FY-96. The new

evaluation is to reflect that he "Met Objectives/Expectations (M)".

It is agreed to compensate the complainant with any applicable back

pay with interest at the appropriate rate.

The Agency agrees to rescind and expunge the Proposed Letter of

Warning in lieu of time off suspension dated 11-18-96 and the Letter

of Warning dated 3-18-97. In addition, all notes relative to the

1-21-97 Investigative Interview will be expunged from all records.

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 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

(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)).

Provision 5(A)

The record shows and complainant admits that in August 1998 he received

the payment due under provision 5(A). Complainant has not claimed that

this payment was insufficient. There was no time limit for the payment

to be made under the agreement. The Commission finds that the agency

has complied with provision 5(A) of the settlement agreement.

Provision 5(D)

The agency claims that the adjustments were completed in July 1998,

but complainant argues on appeal that he has not received 8 hours

administrative leave for October 23, 1996 or .73 hours at the straight

time rate for January 31, 1996 (presumably he means 1997 as per the

agreement). The evidence submitted by the agency does not clearly

identify that the correct payment was made for October 23, 1996 or January

31, 1997 as per the agreement. Therefore, based on the evidence in the

record the Commission can not determine if the agency has complied with

provision 5(D). The Commission shall remand the matter so that the

agency can supplement the record with evidence clearly showing (with

all relevant codes and abbreviations explained) that it compensated

complainant "for .73 hours at the straight time rate for 1-31-97 and 8

hours of administrative leave for 10-23-96."

Provision 5(E)

Although the agency indicates that it is working on implementing this

provision there is no evidence in the record showing that the provision

has been complied with by the agency. The Commission notes that the

agreement did not require that this provision be implemented within

any particular time frame. Therefore, we shall remand provision 5(E)

so that the agency may supplement the record with evidence showing that

it has complied with provision 5(E).

Provision 5(F)

The agency has shown that it has expunged the relevant documents and

complainant is apparently not challenging the agency's assertion.

Therefore, we find that complainant has failed to show that the agency

breached provision 5(F) of the agreement.

The agency's decision finding that it did not breach provisions 5(A)

and 5(F) of the settlement agreement is AFFIRMED. The agency's decision

finding that it did not breach provisions 5(D) and 5(E) of the settlement

agreement is VACATED and we REMAND the matter to the agency for further

processing in accordance with this decision and applicable regulations.

ORDER

The agency shall supplement the record with:

Evidence clearly showing (with all relevant codes and abbreviations

explained) that it compensated complainant, per provision 5(D) of the

settlement agreement, "for .73 hours at the straight time rate for

1-31-97 and 8 hours of administrative leave for 10-23-96."

Evidence showing that it has complied with provision 5(E) of the

settlement agreement.

Within 60 days of the date this decision becomes final the agency shall

issue a new decision determining whether the agency breached provisions

5(D) and 5(E) of the settlement agreement. A copy of the agency's new

decision must be sent to the Compliance Officer referenced herein.

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 (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).

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision 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 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.

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

November 30, 1999

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.