Vincent D. McBride, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 8, 2000
01a01612 (E.E.O.C. Aug. 8, 2000)

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.