01971432
10-14-1998
Robert V. Brannum, Appellant, v. Harris Wofford, President & Chief Executive Officer, Corporation for National and Community Service, Agency.
Robert V. Brannum v. Corporation for National and Community Service
01971432
October 14, 1998
Robert V. Brannum, )
Appellant, )
)
v. ) Appeal No. 01971432
) Agency No. 04-95-012
Harris Wofford, )
President & Chief Executive Officer, )
Corporation for National and )
Community Service, )
Agency. )
_____________________________________)
DECISION
Appellant filed the instant appeal from the agency's decision finding
that the agency had not breached a settlement agreement (signed by
appellant on April 18, 1996) between the parties.
As an initial matter the agency argues that the appeal was untimely filed.
The agency argues that it issued a decision finding no breach on May
28, 1996 and then issued a second decision finding no breach on August
22, 1996. Appellant filed an appeal with the Washington Field Office
of the Commission by letter received by the Washington Field Office on
November 25, 1996. The Washington Field Office forwarded appellant's
appeal to the correct office in the Commission, the Office of Federal
Operations, in a letter received by the Commission on December 6, 1996.
Although the May 28, 1996 letter did inform appellant that he could
appeal to the Commission, the May 28, 1996 letter did not provide
appellant with the time frames (or address) for filing an appeal.
The August 22, 1996 decision explicitly stated that it was a final
agency decision, but did not provide appellant with the time frames
(or address) for filing an appeal. Even if we treat the May 28, 1996
letter as a decision on the breach allegation, we find that the agency
may not argue that appellant's appeal is untimely due to the agency's
failure to provide full appeal rights to appellant in the May 28, 1996
or August 22, 1996 decisions. Furthermore, appellant's appeal to the
Washington Field Office of the Commission in November 1996 was not so
late as to be barred by the doctrine of laches.
The Commission shall treat the instant appeal as being from the August
22, 1996 decision finding that the agency did not breach the settlement
agreement. The agency's argument on appeal is consistent with the August
22, 1996 decision.
In the settlement agreement signed by appellant on April 18, 1996 the
parties agreed:
The Corporation will pay [appellant] $5,213.60 in back pay plus interest,
which is equal to the amount he would have received from August 13,
1995 to September 30, 1995, with interest computed according to 5
C.F.R. �550.805.
By letter dated May 1, 1996 the agency informed appellant that he was
being paid $2,861.58 in net back pay under the settlement agreement.
The agency provided a detailed accounting showing that $237.17 in interest
was added into the settlement amount of $5,213.60 and the following
deductions were taken from the settlement amount: (1) federal tax -
$1,365.84; (2) DC state tax - $463.75; (3) FICA - $323.25; (4) HITS
(Medicare tax) - $75.60; and (5) outstanding travel advance - $360.75.
In the August 22, 1996 decision the agency asserted that the deductions
(at least in part) were authorized under Office of Personnel Management
Regulations at 5 C.F.R. �550.805. On appeal the agency asserts that
appellant received his check for $2,861.58 on or about April 29, 1996.
EEOC Regulation 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 appellant 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)).
Appellant has not made specific allegations of breach on appeal.
Appellant has not claimed that he did not receive the check for $2,861.58
or that any particular calculation was made incorrectly. By letter dated
May 3, 1996, however, appellant informed the agency that the agreement
made no mention of any deductions to the back pay settlement amount.
Regarding the deductions we note that when computing the amount of back
pay an agency shall deduct "[a]ny erroneous payments received from the
Government as a result of the unjustified or unwarranted personnel action
. ." 5 C.F.R. �550.805(e)(2). The Commission finds that the agency, in
good faith interpretation of 5 C.F.R. �550.805, deducted the outstanding
travel advance. The Commission finds that the agency's implementation
of the agreement was based on a good faith determination that back pay
would be subject to Federal tax liability, local tax liability, FICA,
Medicare tax, and outstanding travel advances owed by appellant to the
agency. See Webb v. Department of the Army, EEOC Request No. 05920915
(Mar. 15, 1993). There is no violation of the agreement as there is no
provision stating that the agency would be liable for the employee's tax
burden. See id. The Commission does not determine whether the agency
correctly calculated the withheld taxes or outstanding travel advance;
the Commission only holds that the agency did not breach the agreement
by making such good faith deductions. See id. If appellant wanted to
receive a "net" amount of $5,213.60, then he should have included such an
expectation in writing as part of the agreement. Id. (citation omitted).
The agency's determination that appellant has failed to show that the
agency breached the settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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 (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:
October 14, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations