05970446
02-26-1999
John W. Kessler, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John W. Kessler v. United States Postal Service
05970446
February 26, 1999
John W. Kessler, )
Appellant, )
)
v. ) Request No. 05970446
) Appeal No. 01962870
) Agency No. 4-B-0126-8
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
On January 28, 1997, John W. Kessler (hereinafter referred to as
appellant) initiated a request to the Equal Employment Opportunity
Commission (EEOC) to reconsider the decision in Kessler v. U.S. Postal
Service, EEOC Appeal No. 01962870 (January 13, 1997). EEOC Regulations
provide that the Commissioners may, in their discretion, reconsider
any previous Commission decision. 29 C.F.R. �1614.407(a). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following three criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy,
29 C.F.R. �1614.407(c)(2); and the previous decision is of such
exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). Appellant's request is denied. However,
in order to clarify portions of the previous decision, the Commission
will reconsider the matter on its own motion.
The record shows that the parties entered into a Settlement Agreement
(the Agreement) on January 16, 1991 which provided, in relevant part, that
appellant would be given "backpay for lost wages (minus monies received by
virtue of his retirement), benefits, and the restoration of his leave."
By letter to the agency date October 26, 1995, appellant alleged that
the agency had breached the Agreement. Specifically, appellant alleged
that he was entitled to the following additional relief: (1) interest on
back pay as a result of the unreasonable period of delay in awarding the
backpay to appellant; (2) accrued annual and sick leave plus interest;
(3) uncredited Thrift Saving Plan participation; (4) reimbursement of
an income tax overpayment; and, 95) pain and suffering.
ANALYSIS AND FINDINGS
Interest on Back Pay
The record shows that appellant received his backpay award sometime after
August 19, 1994. The previous decision found that appellant was not
entitled to interest on backpay because: (1) the delay in the processing
of appellant's backpay award was s result of appellant's futile attempt
to retain his retirement lump sum payment and a result of the agency's
restructuring; and, (2) the Agreement included no specific time limits
with respect to the backpay award. In his request, appellant states,
with regard to this and all other issues, that the written Agreement
does not reflect the true intent of the parties. Appellant also states
that he did not cause the delay of his backpay.
The record confirms that there was no provision in the Agreement for
interest on backpay or any provision with regard to time limites on the
reimbursement of backpay. The record also confirms that the delay in
the payment was due, at least in part, to appellant's attempt to retain
a retirement lump sum payment. Under these circumstances, we find that
the previous decision properly determined that appellant was not entitled
to interest on his backpay award.
Accrued Annual and Sick Leave Plus Interest
The previous decision found that appellant was not entitled to interest
on his accrued annual and sick leave because, again, the Agreement
included no specific provision for interest on leave nor any time
limitations in connection with the reimbursement of leave. However,
the previous decision acknowledged that the Agreement provided for the
restoration of appellant's leave. The previous decision concluded
that it was unclear from the record whether the proper amounts of
leave were restored to appellant. Accordingly, the previous decision
order the agency to supplement the record with documentation to support
its claim that the correct amount of leave was restored to appellant.
No further documentation has been submitted by the agency thus far and
appellant submits no new information in his Request regarding this issue.
Therefore, the prior decision remains the same with respect to this
issue.
Uncredited Thrift Savings Plan Participation
The previous decision found that the agency had not agreed to "donate"
retroactive contributions to appellant's Thrift Savings Plan. In his
Request for Reconsideration (and in the previous appeal), appellant
appears to argue that he understood the Agreement to include retroactive
participation in and an agency contribution to the Thrift Savings Plan.
We find that appellant is entitled to retroactive participation in
the Thrift Savings Plan. This participation shall include appropriate
deductions from appellant's backpay award for inclusion in the Thrift
Savings Plan and any matching contributions which the agency would have
made during the relevant time period.
Reimbursement of Income Tax Overpayment
Appellant essentially claims in the previsou appeal and in his Request
that he was entitled to reimbursement for hte overpayment of federal
income taxes fo 1988 and 1999 which resulted from the lulmp sum retirement
payment he received in 1988. The previsou decision found that appellant
was not entitled to this overpayment because the Agreement did not
specifically provide for such reimbursement. We agree, and appellant has
submitted no new information on Request which would change our decision
in this regard.
Pain and Suffering
The previous decision found that appellant was not entitled to
compensatory damages because he failed to establish a breach of
the Agreement with respect to the agency's delay in processing his
backpay award. We first note that the Agreement predated November
21, 1991 (the effective date of the Civil Rights Act of 1991), when
compensatory damages became available in the federal process. However,
in any event, compensatory damages are not available for the breach
of a settlement agreement; compensatory damages are awarded in cases of
intentional discrimination. See Berendsen v. Department of Agreculture,
EEOC Request No. 05950488 (March 1, 1996). Accordingly, we find that
appellant is not entitled to damages for pain and suffering.
ORDER
The agency is ORDERED to supplement the record with any relevant available
documentation to support the agency's claim that it restored the correct
amounts of leave to appellant for the years 1988, 1989, and 1990
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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� (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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 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 (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
Feb 26, 1999
DATE
Frances M. Hart
Executive Officer
Executive Secretariat