John W. Kessler, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 27, 2000
01a01242b (E.E.O.C. Sep. 27, 2000)

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.