01985926
05-26-2000
La' Jerrold A. White, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
La' Jerrold A. White, )
Complainant, )
)
v. ) Appeal No. 01985926
) Agency No. 4-H-320-0155-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On July 1, 1998, the agency issued a final decision finding that
it complied with the terms of an April 28, 1998 settlement agreement
entered into with complainant. Complainant timely appealed the agency's
decision to this Commission.<1> The appeal is accepted for review.
See 64 Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be codified and
hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.402); 29
C.F.R. � 1614.504(b).
The settlement agreement provided, in pertinent part, that:
(1) The settlement of this mediation will be in the amount of $600
(six hundred dollars). Three hundred dollars is to be paid directly to
[complainant] no later than May 8, 1998, and the remainder [is] to be
paid through payroll adjustment.
(4) [The supervisor] agrees to have a union rep. (NALC) when in dialogue
with [complainant] even if it means postponing that dialogue to the next
day if a NALC rep. is not available.
By letter to the agency dated May 18, 1998, complainant alleged that the
agency breached the agreement. Specifically, complainant alleged that
the agency failed to make its $300 direct payment or its $300 payroll
adjustment. Further, complainant alleged that the supervisor held a
dialogue with complainant although no union representative was present.
On July 3, 1998, complainant sent a second letter to the agency, claiming
that the agency's practice of using sick leave reimbursement to pay its
$300 payroll adjustment was a breach of the agreement. In his second
letter, complainant requested reinstatement of the underlying complaint.
In its July 1, 1998 final decision, the agency concluded that no breach
occurred. The agency explained that the supervisor's two week absence
from the office caused the delay in implementation. The agency admits
that it had not performed its obligations under the agreement by May 8,
1998, but asserts that it accomplished compliance on June 10, 1998.
On appeal, complainant argues that the supervisor was in his office
during the relevant period, but was attempting to delay the processing
of the agreement's terms. Complainant also notes that the agency never
addressed the impropriety of using sick leave rather than pay adjustments
to reimburse complainant.
The record includes a copy of two money orders addressed to complainant,
one for $300 (dated May 20, 1998), and another for $100 (dated June 10,
1998). The record also includes a Leave Adjustment Request, dated June 9,
1998, changing 11.36 hours of leave-without-pay (LWOP) to sick leave.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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).
In the instant case, complainant clearly received $400. However,
complainant did not receive the remaining $200 due under the terms of the
settlement agreement. The plain-meaning of the term �payroll adjustment�
does not include an adjustment in leave. To the extent that the agency
wished to use a change in leave as a �payroll adjustment� to reimburse
complainant, it should have negotiated to have such terms explicitly
included in the settlement agreement itself. Further, the agency failed
to address complainant's assertion that the supervisor held discussions
with complainant without the attendance of a union representative.
Accordingly, the Commission finds that the agency breached the April 28,
1998 settlement agreement.
When a settlement agreement is breached, complainant is entitled to
either specific implementation of the agreement, or reinstatement of
the underlying complaint. See 64 Fed. Reg. 37,644, 37,660 (1999) (to
be codified as 29 C.F.R. � 1614.504(a)). If the underlying complaint
is reinstated, then both parties must return to the �status-quo ante,�
i.e., complainant must return any benefit received from the settlement.
See Brooks v. Social Security Administration, EEOC Request No. 05970229
(October 9, 1998) (finding reinstatement of the complaint an inappropriate
remedy since complainant received benefits from the agreement and could
not be returned to prior position).
CONCLUSION
Accordingly, the agency's finding of no breach is REVERSED, and the
claim is REMANDED for further processing as provided below.
ORDER
The agency is ORDERED to notify complainant of his option to return
to the status quo as it existed prior to signing the agreement, i.e.,
return all benefits received under the agreement, and have the complaint
reinstated, or to have the settlement agreement specifically implemented.
The agency must notify complainant of these options, in writing, within
fifteen (15) calendar days of the date this decision becomes final.
This notice must inform complainant that he has fifteen (15) days from
its receipt to return all leave and money received under the agreement,
in order to have his complaint reinstated.
If complainant elects to return to the status quo ante and returns all
monies and benefits owed to the agency, then the agency shall resume
processing of complainant's complaint from the point processing ceased
pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified as 29
C.F.R. � 1614.108 et seq.). The agency shall notify complainant in writing
that the processing of his complaint is being resumed within forty-five
(45) calendar days of the date this decision becomes final.
If complainant elects not to return to status quo ante, or otherwise fails
to return all monies and benefits received pursuant to the agreement,
then the agency shall notify complainant that the terms of the agreement
will be specifically implemented. In such case, the agency shall adjust
complainant's pay to reimburse him for the remaining $200 due under the
settlement agreement. The reimbursement shall occur and be reflected
on complainant's payroll statement within forty-five (45) calendar days
of the date this decision becomes final.
Further, the agency shall provide the Compliance Officer with a copy
of the notice to complainant concerning his options, and the notice
of processing or proof of reimbursement to the Compliance Officer as
provided below.
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 (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
May 26, 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 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.