01a01242b
09-27-2000
John W. Kessler, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John W. Kessler v. United States Postal Service
01A01242
September 27, 2000
.
John W. Kessler,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A01242
Agency No. 4-B-0126-8
DECISION
Complainant originally filed an appeal with this Commission from an
agency decision dated October 26, 1995, finding that it was in compliance
with the terms of a January 16, 1991 settlement agreement into which the
parties entered.<1> See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);
and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
The complainant shall be restored to the rolls effective December
29, 1990. [He] will be assigned to the position of Manager, Station
Operations, Kensington Station, Detroit Michigan 43224, at the grade
and rate prior to [his] retirement. [Complainant] will also be given
full back pay for lost wages (minus monies received by virtue of [his]
retirement), benefits and the restoration of [his] leave.
Complainant alleged that the agency was in breach of the settlement
agreement, and requested that the agency specifically implement its terms.
Specifically, complainant alleged that the monies he �was to be paid
were not paid within a reasonable time.� In addition, complainant also
demanded the following additional damages: (1) interest on the back pay
award as a result of the unreasonable period of delay; (2) accrued annual
leave and sick leave plus interest; (3) uncredited Thrift Savings Plan
participation; (4) reimbursement for income tax overpayments; and (5)
pain and suffering.
In Kessler v. U.S. Postal Service, EEOC Appeal No. 01962870 (January
13, 1997), the Commission held that the agency did not breach the
settlement agreement when �the monies which [complainant] was to
be paid were not paid within a reasonable time� and therefore found
that complainant was not entitled to interest on the back pay award.
In addition, the Commission held that: (1) complainant was not entitled
to interest on his sick and annual leave, (2) complainant was not
entitled to retroactive participation in the Thrift Savings Plan in
the form of agency contributions, and (3) complainant was not entitled
to reimbursement for income tax overpayment. The Commission, however,
noted that the agreement provided for the restoration of complainant's
leave and ordered the agency to supplement the record with relevant
documentation to support the agency's claim that it restored the correct
amounts of leave to complainant for the years 1988, 1989, and 1990.
Thereafter, the Commission ordered the agency to issue a final decision
as to whether the correct amounts of leave were restored to complainant.
On January 28, 1997, complainant filed a request for reconsideration.
The Commission denied complainant's request but in order to clarify
portions of the previous decision, the Commission reconsidered the matter
on its own motion. The Commission found that the previous decision
properly determined that complainant was not entitled to interest on
his back pay award or interest on his accrued annual and sick leave.
The Commission noted, however, that the previous decision ordered
the agency to supplement the record with documentation to support its
claim that the correct amount of leave was restored to complainant.
As no further documentation had been submitted by the agency at the time
complainant filed his request for reconsideration, the Commission stated
that the prior decision remained the same with respect to this issue.
With regard to the uncredited Thrift Savings Plan Participation,
the Commission found that complainant was entitled to retroactive
participation in the Thrift Savings Plan and ordered the agency to
�determine the appropriate amount of matching funds which should be
retroactively contributed to the plan and any other Thrift Savings Plan
benefits which complainant would have received during the relevant time
period.� The Commission's decision also ordered the agency to submit
a report from the supplemental investigation to the Compliance Officer.
The agency conducted its supplemental investigation and issued a report
to the Commission in which it calculated the amount of leave earned
and paid as a result of the Back Pay Award for the years 1988, 1989,
and 1990. In addition, the agency stated that complainant was covered
under the Civil Service Retirement System (CSRS) and therefore is not
eligible for matching TSP contributions by the agency. The agency
did determine that complainant is entitled to lost earnings (interest)
on his TSP contributions for the period from January 14, 1989, through
December 28, 1990. The agency included a mock back pay calculation
regarding complainant's TSP payments for this period ($5,195.26) and
informed complainant that if he wished to make TSP contributions, the
Back Pay Award processed by the agency must be canceled, recalculated,
and reissued.
By letter dated May 18, 1999, complainant acknowledged receipt of the
agency's supplemental investigation, but characterized its content as
incomplete. The Commission docketed complainant's letter as an appeal
alleging breach of settlement agreement.
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).
Upon review of the record, we find that the agency did not breach
the January 16, 1991 settlement agreement. The agency has presented
evidence that the correct amounts of leave were restored to complainant.
On appeal, complainant presents no evidence disputing the agency
calculations. In addition, the Commission finds that the agency properly
determined that complainant is not entitled to agency matching funds to
the TSP based on his CSRS status. Finally, we find that the agency's
determination that complainant is entitled to lost earnings (interest)
on his TSP contributions is correct.
We note that the record contains a letter dated August 17, 1995, in which
the agency informed complainant that he is entitled to lost earnings
on his TSP contributions for the period of January 14, 1989, through
December 28, 1990. The letter informs complainant that if he wishes to
make TSP contributions, the Back Pay Award will be reprocessed to include
the TSP contributions to the G Fund for approximately $5,195.26 for the
period January 14, 1989, through December 28, 1990. In its letter, the
agency stated that once complainant pays the amount due ($5,195.26),
the agency will forward TSP contributions in that amount to his TSP
account and lost earnings will be calculated based on TSP regulations.
In its supplemental investigation, the agency included a �mock� back pay
calculation regarding the complainant's TSP payments beginning with pay
period #17 in 1988, and continuing through pay period #1 in 1991.
Upon review of the record and the statements provided by the parties
on appeal, we find that the agency has correctly calculated the total
contributions that must be paid by complainant in order to participate in
the Thrift Savings Plan. The record reveals that to date complainant has
not paid the amount due ($5,195.26), in order to secure his participation
in the TSP for the relevant period (January 14, 1989, through December
28, 1990). In its supplemental investigation, the agency has indicated
that it will credit the appropriate lost earnings to complainant's TSP
account, once complainant has paid the amount due ($5,195.26).
Accordingly, we find that the agency did not breach the January 16,
1991 settlement agreement into which the parties entered.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 27, 2000
__________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.