Thomas A. Danberger, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 11, 2000
01986411 (E.E.O.C. Feb. 11, 2000)

01986411

02-11-2000

Thomas A. Danberger, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Thomas A. Danberger, )

Complainant, )

)

v. ) Appeal No. 01986411

) Agency No. 4F-920-0074-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Complainant appeals to the Commission for a determination as to whether

the agency has complied with the terms of a settlement agreement into

which the parties entered. (see 64 Fed. Reg. 37,644, 37,660 (1999)

(to be codified and hereinafter cited as 29 C.F.R. �1614.504(b)); EEOC

Order No. 960, as amended.<1>

ISSUE PRESENTED

The issue on appeal is whether the agency breached the settlement

agreement.

BACKGROUND

Complainant filed a formal EEO complaint wherein he claimed that he

was discriminated against on the bases of his race (Caucasian), color

(white), sex (male), and age (48) when on October 18, 1996, he did not

receive a merit award and when he was subsequently denied a cash award

(EVA) under the Economic Value Added Variable Pay Program.

The complaint was accepted for investigation. Subsequent to the

investigation, complainant requested a hearing before an EEOC

Administrative Judge. The complaint was resolved by a settlement

agreement entered into on June 12, 1998. The agreement stated in relevant

part that:

The Complainant's merit rating for 1996 shall be changed to �meets

expectations.� As a result of this change the Complainant shall be

entitled to back pay and/or a salary increase in the amount he would

have received had his original 1996 merit rating been recorded as �meets

expectations.� Any Copies of the EAS Merit Performance Evaluation form

... located in either the Complainant's OPF and/or merit file shall be

removed and destroyed. The Agency shall not refer to that evaluation

form in any future action, related to the Complainant's performance.

In addition, the Complainant shall be considered eligible for his

1996 EVA payment. As a result of his change, the Complainant shall be

entitled to back pay in the amount he would have received if his EVA

had not been denied.

By letter dated July 16, 1998, complainant notified the Senior EEO

Complaints Processing Specialist that the agency had failed to comply

with the settlement agreement. Complainant requested that the agreement

be enforced with regard to the aforementioned portion of the settlement.

On August 21, 1998, complainant filed the instant appeal with the

Commission. Complainant states that the agency failed to respond within

35 days of his claim of noncompliance. Complainant requests that the

terms of the settlement agreement be specifically implemented.

In its final decision dated August 31, 1998, the agency determined

that the settlement agreement has not been breached. The agency stated

that management maintains that complainant received his merit increase

for 1996. Further, the agency stated that complainant was informed

that in order for him to receive the EVA back payment, it must first

be approved by the Area Vice President before it can be processed.

The agency determined that management has attempted to contact

complainant's representative, but he failed to respond.

In support of his appeal, complainant submits a declaration from his

representative that to the best of the representative's knowledge

and belief, the agency did not attempt to update him regarding its

noncompliance with the settlement until it issued its final decision.

In response, the agency asserts that management provided documentation

demonstrating that complainant did receive a satisfactory rating for 1996.

The record contains complainant's merit history. According to this form

and the statement accompanying it, complainant received his merit pay

increase on January 4, 1997, as his merit award for Fiscal Year 1996.

This document further states that complainant's performance rating was

�Met Expectations� and therefore, no adjustment was required for issuance

of a merit award.

ANALYSIS AND FINDINGS

Volume 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter

cited as 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.

If the complainant believes that the agency has failed to comply with

the terms of a settlement agreement or final action, the complainant

shall notify the EEO Director, in writing, of the alleged noncompliance

within 30 days of when the complainant knew or should have known of the

alleged noncompliance. The complainant may request that the terms of

the agreement be specifically implemented, or, alternatively, that the

complaint be reinstated for further processing from the point processing

ceased.

Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter cited

as 29 C.F.R. �1614.504(b)) provides that the agency shall resolve the

matter and respond to the complainant, in writing. If the agency has not

responded to the complainant, in writing, or if the complainant is not

satisfied with the agency's attempt to resolve the matter, the complainant

may appeal to the Commission for a determination as to whether the

agency has complied with the terms of the settlement agreement or action.

The complainant may file such an appeal 35 days after he or she has served

the agency with the allegations of noncompliance, but must file an appeal

within 30 days of his or her receipt of an agency's determination.

The Commission has consistently held that settlement agreements are

contracts between complainant and the agency, and 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, 381 (5th Cir. 1984).

In the instant matter, complainant claimed that the agency breached the

settlement agreement by

not implementing the aforementioned portion of the agreement concerning

his merit rating, merit award, and the back pay related to the EVA.

Upon review of the record, we note that it appears that complainant's

performance rating for Fiscal Year 1996 was changed from �Unacceptable�

to �Met Expectations�. Further, the record reflects that complainant

received a merit pay award for Fiscal Year 1996 on January 4, 1997.

However, there is no documentation in the record to establish that any

copies of the EAS Merit Performance Evaluation form wherein complainant

received an �Unacceptable� rating have been removed from complainant's

official personnel file and/or merit file and destroyed. With regard

to the back pay owed to complainant in terms of the EVA, we note that

the agency stated that the payment must first be approved by the Area

Vice President before it can be processed. Given that there is no

further information on this issue, we are unable at this juncture to

determine to whether the agreement has been breached. Accordingly,

the agency's final decision finding that there was no breach of the

settlement agreement is hereby VACATED. This matter is REMANDED for a

supplemental investigation pursuant to the ORDER below.

ORDER

The agency is ORDERED to take the following action:

Supplement the record with evidence that complainant's prior EAS Merit

Performance Evaluation form reflecting the �unacceptable� rating has

been expunged from complainant's OPF and/or merit files;

Supplement the record with evidence regarding whether complainant has

received the EVA back payment, the calculations thereof, and/or the

status of that payment;

Supplement the record with any other relevant evidence regarding

complainant's allegations of breach.

Within thirty (30) calendar days of the date this decision becomes

final, the agency shall issue a final decision regarding complainant's

allegations of breach, clearly setting forth the reasons for the

determination.

A copy of the agency's new final decision 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 (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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

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:

February 11, 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 1 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.