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.