Samuel C. Kelly, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 9, 2000
01984535 (E.E.O.C. Aug. 9, 2000)

01984535

08-09-2000

Samuel C. Kelly, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Samuel C. Kelly, )

Complainant, )

)

v. ) Appeal No. 01984535

) Agency No. 4C-190-1056-95

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Complainant filed the instant appeal from the agency's April 24,

1998 determination that the settlement agreement in this case was not

breached.<1>

The record shows that complainant sought EEO counseling on November 25,

1994, alleging that he had been discriminated against on the basis of

mental disability (post traumatic stress syndrome) when on November 22,

1994, he received a notice of removal for unsatisfactory work performance.

Complainant subsequently filed a formal complaint of discrimination.

On December 10, 1997, complainant reached a settlement agreement

with the agency regarding his formal complaint of discrimination.

The parties agreed, inter alia, that: complainant �would be reinstated

to the position of Mail Handler effective December 20, 1997, serving a

new 90 day probationary period ... [his] enter on duty date, seniority,

leave computation date, and retirement computation date will be September

24, 1994. Furthermore, [he] will be credited with step(s) and general

increases that occurred since the date of separation. [He] will also

receive a lump sum in the amount of Ten Thousand Dollars�.

By letter dated March 17, 1998, complainant's attorney requested the

agency's compliance with the terms of the settlement agreement or the

�renegotiation� of the agreement.

On April 24, 1998, the agency issued its determination and found that

the settlement agreement had not been breached. The agency advised

complainant that December 20, 1997 is �his craft seniority date,� and

that September 24, 1994 constitutes �the date he began his postal career�

and therefore, it is �his service seniority�. The agency found that the

lump sum payment had been processed. The agency also stated that �as a

good faith gesture, the Postal Service will modify the EEO settlement to

include re-crediting [complainant] with all annual and sick leave he would

have earned had he not been separated from his position as city carrier�.

It is from this determination that complainant now appeals.

On appeal, the agency contends that complainant's service seniority

is September 24, 1994, and that his craft seniority is December 20,

1997 (the date when he was reinstated to the position of mail handler

pursuant to the settlement agreement). The agency further contends that

to apply the September 24, 1994 date to complainant's craft seniority

would be against the mail handler's collective bargaining agreement.

Specifically, the agency argues that its intent was �not to give

[complainant] any seniority that he's obviously not entitled to within

the Mail Handler's Bargaining Craft.�

The regulation set forth at 64 Fed. Reg. 37,644, 37,660 (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 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. USPS, EEOC Request No. 05931097 (Apr. 29, 1994) (citing Hyon

v. USPS, 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. (citingMontgomery Elevator v. Building Engineering Service, 730

F.2d 377 (5th Cir. 1984)). The Commission notes that if a complaint is

reinstated for further processing, then the parties must be returned to

the status quo at the time that the parties entered into the settlement

agreement, which requires that a complainant return any monies received

pursuant to the settlement agreement. See, e.g., Armour v. Department of

Defense, EEOC Appeal No. 01965593 (June 24, 1997); Komiskey v. Department

of the Army, EEOC Appeal No. 01955696 (September 5, 1996).

The Commission determines that a fair reading of the terms of the

settlement agreement reflects that it clearly provided that complainant's

�seniority� would be computed from September 24, 1994. The agreement

did not make any distinction between complainant's �service seniority�

of September 24, 1994, or his �craft seniority� of December 20, 1997.

Moreover, the record reflects that the agency would not compute

complainant's seniority from the service seniority date of September

24, 1994, because to do so would provide him with seniority �that he's

obviously not entitled to within the Mail Handler's Bargaining Craft.�

Although settlement agreements are binding on the parties, an agency may

not specifically perform on the agreement if it later learns that the

agreement's terms violate a collective bargaining agreement. See Pyles

v. USPS, EEEOC Request No. 05920044 (April 22, 1992). If an agency

were to determine that the settlement agreement violated the collective

bargaining agreement, then it must reinstate complainant's complaint and

begin processing the complaint from the point at which processing ceased.

See id.

Accordingly, we determine that the agency's refusal to reinstate

complainant complaint was improper and is REVERSED. We remand this matter

to the agency for further processing. In so doing, the Commission notes

that complainant may have received some of the benefits promised in the

agreement. Such benefits must be returned if he wishes to reinstate

his complaint for further processing. The Commission therefore gives

complainant the option, in accordance with the ORDER below, of either

returning the benefits conferred pursuant to the agreement and reinstating

the complaint, or keeping the benefits conferred pursuant to the agreement

and abiding by the terms of the agreement.

ORDER

The agency is ORDERED to notify complainant of his option to return

to the status quo prior to the signing of the settlement agreement.

The agency shall so notify complainant within thirty (30) calendar days

of the date that this decision becomes final. The agency shall also

notify complainant that he has fifteen (15) days from the date of his

receipt of the agency's notice within which to notify the agency either

that he wishes to return to the status quo prior to the signing of the

agreement, or that he wishes to allow the terms of the agreement to stand.

Complainant shall be notified that in order to return to the status quo

ante, he must return any benefits received pursuant to the agreement.

The agency shall determine any payment due complainant, or return of

consideration or benefits due from complainant, within thirty (30)

calendar days from the date this decision becomes final, and shall

include such information in the notice to complainant.

If complainant elects to return to the status quo ante and he returns

any monies or benefits owing to the agency, as specified above, 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 and hereinafter referred to as EEOC Regulation 29

C.F.R. � 1614.108 et seq). If complainant elects not to return to the

status quo ante, i.e., not to return consideration owing the agency,

the agency shall notify complainant that the terms of the settlement

agreement shall stand.

A copy of the agency's notice to complainant regarding his options,

including the determination of consideration due or owing, as well

as a copy of either the correspondence reinstating the complaint for

processing or the correspondence notifying complainant that the terms

of the settlement agreement will stand, must be sent to the Compliance

Officer, as referenced 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:

August 9, 2000

DATE Carlton M. Hadden,

Director

Office of

Federal

Operations

CERTIFICATION 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

ASSISTANT1 On 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.