01a01612
08-08-2000
Vincent D. McBride, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Vincent D. McBride v. United States Postal Service
01A01612
August 8, 2000
Vincent D. McBride, )
Complainant, )
)
v. ) Appeal No. 01A01612
William J. Henderson, ) Agency No. 4F-907-0114-99
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a decision
by the agency dated November 11, 1999, finding that it was in compliance
with the terms of the April 29, 1999 settlement agreement into which the
parties entered.<1> 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); and 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. � 1614.405).
The settlement agreement provided, in pertinent part, that:
The grievant's emergency suspension and separation action shall be
expunged from his Official Personnel File (OPF) upon receipt of grievant's
resignation from the [agency] with an effective date of April 24, 1999.
The grievant shall be entitled to back pay without interest, in accordance
with the provisions of Section 436 of Employee and Labor Relations Manual,
for the period beginning October 30, 1998 and ending April 24, 1999, the
effective date of his resignation. Barring any unforseen circumstances,
the processing of the back pay by Minneapolis Postal Data Center will be
completed as expeditiously as possible upon submission of all completed
back pay forms (PS Form 8038 & PS Form 8039). It is foreseeable that
this process could take up to 12 weeks upon receipt of back pay forms
by Minneapolis PDC. If the payment of the back pay check is not mailed
to the last known mailing address by the end of the 12th week, this
agreement will be considered null & void unless both parties agree to
extend the back pay processing period. It is further agreed that twelve
week period will begin upon receipt of the grievant's PS Form 8038.
The grievant agrees to withdraw his current lawsuit and all pending
appeals in any administrative forum including but not limited to (EEO,
MSPB, Congressional) relating to his employment with the [agency].
By letter to the agency dated June 9, 1999, complainant stated that he
had not received the six months back pay due to him under the April 29,
1999 settlement agreement and requested that the agency reinstate his
discrimination complaint. The agency responded in a June 14, 1999 letter
noting that the settlement agreement provided that the agency had twelve
(12) weeks or approximately eighty-four (84) days to issue a back pay
check for the agreed upon amount. The agency stated as of June 9, 1999,
only forty-one (41) calendar days have passed, thus, the agency informed
complainant that his allegation of breach was prematurely made since the
requisite time period for issuing the back pay award had not yet passed.
By letter to the agency dated October 18, 1999, complainant again alleged
that the agency was in breach of the settlement agreement, and requested
that the agency reinstate his EEO complaint.
In its November 11, 1999 decision, the agency stated that complainant
received the back pay award in compliance with the Arbitration Settlement
and concluded that it was not in breach of the settlement agreement.
Specifically, the agency noted that complainant signed a letter on June
18, 1999, acknowledging receipt of the back pay award.
The regulation set forth at 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 present case, we find that the agency is in compliance with the
April 29, 1999 settlement agreement. According to the terms of the
agreement, the agency was to pay complainant back pay, without interest,
from October 30, 1998 to April 24, 1999. The agreement stated that the
payment would be made within twelve weeks of the agency's receipt of
complainant's PS Form 8038.
The record reveals that the agency calculated a back pay award for
complainant for the period of October 30, 1998, through April 24, 1999,
totaling $8,509.05 (after deductions). The record contains a copy of the
back pay check payable to complainant dated June 14, 1999. In addition,
a copy of a release signed by complainant states that he received the
back pay check pursuant to the Arbitration Settlement on June 18, 1999.
Thus, we find that the check for back pay was issued to complainant
within twelve weeks of the agency's receipt of complainant's PS Form
8038, and therefore, conclude that the agency complied with the terms
of the April 29, 1999 settlement agreement.
We note that in his statement in support of his appeal, complainant
mentions a June 9, 1993 settlement agreement. To the extent that
complainant is raising an allegation of breach of this earlier agreement,
we advise him to contact the agency to pursue this issue. See 29 C.F.R. �
1614.504(a).
Accordingly, the agency's dismissal of complainant's complaint was proper
and is AFFIRMED.
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 (S0400)
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. 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 (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 8, 2000
____________________________
Date Carlton M. Hadden, 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.