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.