Johnny F. Peevy, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 9, 2000
01986056 (E.E.O.C. Feb. 9, 2000)

01986056

02-09-2000

Johnny F. Peevy, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Johnny F. Peevy v. United States Postal Service

01986056

February 9, 2000

Johnny F. Peevy, )

Complainant, )

)

v. ) Appeal No. 01986056

) Agency No. 4E-2047-93

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

________________________________)

DECISION

Complainant filed the instant appeal on August 7, 1998 claiming that the

agency breached provisions 4 and 5 of a settlement agreement entered into

by the parties on March 18, 1998 (the settlement agreement is mistakenly

dated with the year 1988).<1>

The settlement agreement provided in pertinent part:

Complainant's records will immediately be changed to reflect the

retroactive promotion of Complainant to an EAS-24, Manager Distribution

Operations (MDO) position, effective March 20, 1993 to the present;

4. Complainant's backpay, interest, COLA's, and general increases, for

the retroactive promotion of Complainant to an EAS 24 position will be

computed and paid by the Postal Data Center in Minneapolis, Minnesota

within a 60 day period of time from the date that the parties sign this

Settlement Agreement.

The Agency shall pay Complainant the lump sum amount of $42,500.00 as

compensatory damages for mental and emotional distress, within 60 days

of the date that the parties sign this Settlement Agreement.

By letter dated June 12, 1998 complainant informed the agency that it

had breached provisions 3, 4, 5, and 8 (requiring the agency to direct

complainant's reassignment to an EAS 24 MDO position within 45 days)

of the settlement agreement. Complainant alleged that the agency had

failed to pay him the backpay and other payments listed in provision 4

and that the agency failed to pay him the compensatory damages as stated

in provision 5 of the settlement agreement. The agency did not issue

a decision on the breach of settlement claim prior to the filing of the

instant appeal.

By letter dated October 29, 1998 the Manager, Human Resources informed

complainant that in regard to complainant's claim that the agency

failed to comply with provisions 4 and 5 of the settlement agreement,

complainant was issued a check in the amount of $3,279 on September

14,1998. The October 29, 1998 letter further stated: "Your settlement

agreement was processed properly, and although it may have exceeded the

60 day time frame, the amount is correct. Accordingly the settlement

agreement has not been breached." The Commission deems the October 29,

1998 agency letter to be a determination by the agency that the agency

did not breach the settlement agreement.

On appeal, complainant admits that he was paid the compensatory damages.

Complainant does not challenge the amount of compensatory damages he

was paid. Complainant argues on appeal that the agency breached the

agreement by: (1) failing to pay him the backpay, benefits, and interest

for the EAS MDO retroactive promotion (provision 4); and (2) failing to

timely pay the compensatory damages (provision 5). Therefore, the only

provisions of the settlement agreement for which complainant is alleging

breach in this appeal are provisions 4 and 5.

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 4

A. Time Limit

Provision 4 of the settlement agreement, which was signed by all parties

on March 18, 1998, provided that various payments were to be made to

complainant within sixty days of the date that the parties signed

the agreement. Sixty days from the date the settlement agreement

was signed was May 17, 1998. Therefore, to comply with provision 4,

the appropriate payments had to have been made to complainant by no

later than May 17, 1998. In a statement dated September 17, 1998, the

agency Labor Representative who signed the settlement agreement stated

that the backpay check was mailed to complainant on September 3, 1998.

The agency has not claimed that it made the payments specified in

provision 4 of the settlement agreement within the 60 day time frame

specified in provision 4 of the settlement agreement or that the agency

made the payment prior to complainant's June 12, 1998 breach claim.

Therefore, we find that the agency breached provision 4 of the settlement

agreement by failing to timely make the required payments in provision 4.

Because the payments due under provision 4 were paid late, we find that

complainant is entitled to an award of interest for the agency's delay

in making the payments due under provision 4 of the settlement agreement.

B. Amount of Payments

The record shows that complainant was issued a check dated September 4,

1998 in the amount of $3,279.29. Complainant states, and the explanation

provided with the check seems to indicate, that the $3,279.29 was payment

for merit increases for the EAS 24 MDO retroactive promotion. The record

also shows that complainant was issued a separate check dated September 4,

1998 in the amount of $23,583.22. Complainant states that the $23,583.22

payment was for backpay for the EAS 24 MDO retroactive promotion.

Complainant argues that the agency miscalculated the salary complainant

was due in back pay. Complainant argues that the underpayment in

backpay (from an incorrect salary determination) resulted in an

underpayment in all other payments due under provision 4 which are

based on complainant's salary. Complainant argues that the agency

computed complainant's backpay by using the "minimum" salary range for

the retroactive promotion. Complainant argues that pursuant to the

agency's Employee and Labor Relations Manual (�413.21), the agency

should have used the "maximum" salary schedule for an EAS 24 when

computing the backpay. Complainant argues that the backpay owed to

him is "$124,685.00 plus statutory interest compounded for each year

and rolled into the principle amount." Complainant also argues that

he is due $2,500.00 in merit award differences (for a total lump sum

of $127,185.00). Complainant states that the amounts claimed as due

by him should now be reduced by the $23,583.22 which has been paid.

Complainant does not explain whether his total claimed should also be

reduced by the $3,279.29 which was paid to complainant.

The record does not clearly show how the Postal Data Center in

Minneapolis, Minnesota computed the amounts due to complainant under

provision 4 of the agreement. The record does contain a three page

document entitled Corrected Salary Progression and numerous Notification

of Personnel Actions. Although the Corrected Salary Progression indicates

that the backpay was calculated by "slotting only to minimum of EAS-24",

the record does not address how this salary level was chosen for the

backpay computation. The agency does not indicate in the Corrected

Salary Progression how the amounts of $3,279.29 and $23,583.22 were

calculated. The Corrected Salary Progression does not reflect any

cumulative totals for backpay, interest, COLA's, or general increases.

The Commission cannot determine if the agency correctly calculated the

amounts due to complainant in provision 4 because the agency has not

clearly shown how it calculated those amounts. Therefore, the Commission

shall remand the matter so that the agency can supplement the record with

evidence clearly showing (in a detailed account) how it calculated the

amounts it paid to complainant pursuant to provision 4 of the agreement.

Provision 5

As the Commission noted above, sixty days from the date the settlement

agreement was signed was May 17, 1998. Therefore, to comply with

provision 5, the compensatory damages payments had to have been made

to complainant by no later than May 17, 1998. In a statement dated

September 17, 1998, the agency Labor Representative who signed the

settlement agreement stated that the compensatory damage check was

received in the accounting office in Denver on May 27, 1998, was

misplaced in accounting, and was "pick[ed] up" by complainant on June

15, 1998. The agency has not claimed that it made the compensatory

damage payment within the 60 day time frame specified in provision 5

of the settlement agreement or that the agency made the payment prior

to complainant's June 12, 1998 breach claim. Therefore, we find that

the agency breached provision 5 of the settlement agreement by failing

to timely pay the compensatory damages.

Because the payment due under provision 5 was paid late, we find that

complainant is entitled to an award of interest for the agency's delay

in making the compensatory damage payment due under provision 5 of the

settlement agreement. April v. Department of Agriculture, EEOC Appeal

No. 01963775 (June 5, 1997) (relying on section 717(d) of the Civil

Rights Act of 1964, 42 U.S.C. �2000e 16(d), as amended by section 114(2)

of the Civil Rights Act of 1991, Pub. L. 102-166 (Nov. 21, 1991)).

The agency's decision finding that it did not breach the time limit

portion of provisions 4 and 5 of the settlement agreement is REVERSED and

we REMAND the matter to the agency for further processing in accordance

with this decision and applicable regulations. The agency's decision

finding that it did not breach the portion of provision 4 of the

settlement agreement concerning the amount of payment due complainant

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

in accordance with this decision and applicable regulations.

ORDER

Within 30 days of the date this decision becomes final the agency shall

pay complainant for the interest accrued on the sum of the payments

due under provisions 4 and 5 of the settlement agreement from May 17,

1998 to the date of payment. The agency shall determine the appropriate

interest due complainant pursuant to 29 C.F.R. �1614.501. A copy of

proof of payment of interest on payments due under provisions 4 and

5 of the settlement agreement shall be sent to the Compliance Officer

referenced herein.

The agency shall supplement the record with evidence clearly showing, in

a detailed account, how it calculated the amounts it paid to complainant

pursuant to provision 4 of the agreement. Within 60 days of the date this

decision becomes final the agency shall issue a new decision determining

whether the agency breached the portion of provision 4 of the settlement

agreement concerning the amount of payment due complainant. A copy

of the agency's new decision must be sent to the Compliance Officer

referenced herein.

ATTORNEY'S FEES (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.501(e)(1)(iii)), he/she is entitled to

an award of reasonable attorney's fees incurred in the processing of the

complaint. 29 C.F.R. �1614.501(e). The award of attorney's fees shall

be paid by the agency. The attorney shall submit a verified statement of

fees to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. �1614.501.

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 (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:

February 9, 2000

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 Assistant

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 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.