01982033_r
05-07-1999
Boyd L. Leech, Appellant, v. 4E-870-1155-95 William J. Henderson, Postmaster General, United States Postal Service, Agency.
Boyd L. Leech, )
Appellant, ) Appeal No. 01982033
) Appeal Nos. 4E-870-0154-97
v. ) 4E-870-1001-96 )
4E-870-1155-95
) 4E-870-1126-95
William J. Henderson, ) 4E-870-1100-95
Postmaster General, ) 4E-870-1085-95
United States Postal Service, ) 4E-870-1077-95
Agency. ) 4E-870-1063-95
______________________________)
DECISION
Appellant timely appealed the agency's final decision not to reinstate
his complaints of unlawful employment discrimination that the parties
had settled. See 29 C.F.R. �1614.402(a); EEOC Order No. 960, as amended.
The record reflects that appellant pursued the EEO complaint process
through eight EEO complaints. On June 18, 1997, appellant and the agency
entered into a settlement agreement in resolution of the complaints.
The settlement agreement contained, in pertinent part, the following
provisions:
2. The complainant will apply for disability retirement. The complainant
will receive a retroactive promotion from October 16, 1993, to a
Maintenance Mechanic, Level 7 Step 0 for disability retirement purposes
only. If this amount does not meet the desired amount of $12,300.00 per
year then the complainant will receive an additional lump sum payment
of $4,000.00 tax free. The retroactive promotion will result in an
automatic back pay situation from October 16, 1993, until present. It is
understood that the lump sum payment will be reduced by the amount of the
above referenced back pay. If the disability retirement is disapproved
this agreement becomes null and void.
3. The complainant shall receive a lump sum payment not to exceed
$25,000.00 tax free. This will be a combination of #2 and #3 combined
and will be paid within thirty days of the approval of disability
retirement. The lump sum payment is contingent on approval of the
disability retirement.
4. The complainant will receive an additional $4,000.00 tax free for
additional issues. The $4,000.00 to be paid within 30 days of approval
of the disability retirement.
7. Attorney's fees will be paid at $18,000.00, to be paid within 30 days
of the disability retirement. Additionally, if the disability retirement
equals the $12,300.00, as needed, then the additional $4,000.00 lump sum
payment (see #2) will be paid as attorney's fees. Counsel will submit
a list of charges to the agency. The payment of attorney's fees is
contingent upon the approval of disability retirement.
By letter dated November 25, 1997, appellant alleged that the agency
breached the settlement agreement. Appellant first noted that on October
2, 1997, he received a notice that his disability retirement application
was approved. Appellant stated that provision 3 of the settlement
agreement clearly provided that �all monies were to be paid within 30
days of approval of disability retirement� and that he therefore should
have received all payments addressed in the settlement agreement by
November 2, 1997.
The record contains copies of a remittance advance to appellant dated
November 17, 1997, indicating that a check in the amount of $4,000.00 was
paid to appellant; and a copy of a remittance advance dated December
11, 1997, indicating that a check in the amount of $25,000.00 was paid
to appellant. Both remittance advances indicate that any tax liability
resulting from the payments is appellant's responsibility.
By letter to the agency dated January 5, 1998, appellant stated that
the agency was in partial compliance with provisions 3 and 4 of the
settlement agreement. Specifically, appellant acknowledged that he
received $25,000.00 in accordance with provision 3 and $4,000.00 in
accordance with provision 4. Appellant argues, however, that although
the agency had agreed that these payments were to be �tax free,� the
remittance advances, cited above, informed him that any tax liability
resulting from the payments was his responsibility.
Regarding provision 2, appellant stated that the agency breached this
provision. Appellant specifically stated that the $4,000.00 sum cited in
provision 2 was to be paid within thirty days of the date that disability
retirement was approved. Appellant further stated that as of January 5,
1998, he was unaware of the amount to which he was entitled as a result of
the disability retirement approval; and that �payment and calculations�
should have been completed by November 2, 1997, thirty days from the
date that the disability retirement was approved.
The record does not contain any response to the agency's allegations of
settlement breach addressed in appellant's letter of November 25, 1997,
and January 5, 1998.
On appeal, appellant reiterates the matters raised in his letter to the
agency, dated January 5, 1998.
In response, the agency argues that in regard to the �tax free� payments
addressed in provisions 3 and 4, appellant was never promised that he
would not have to pay any taxes on any payments received pursuant to the
settlement agreement. The agency argues that the term �tax free� meant
that the lump sum payments would have no taxes deducted from the checks;
and that it did not mean that appellant would not be obliged to report
the payments to the Internal Revenue Service and to pay taxes.
Regarding appellant's allegation that the agency breached provision 2,
the agency acknowledges that it is not yet in compliance with provision
2. The agency notes that provision 2 provides that if the retirement
disability amount does not meet appellant's �desired amount� of $12,300.00
per year, that appellant would be paid an additional �tax free� amount
of $4,000.00; and that if appellant did receive $12,300.00 per year,
the additional $4,000.00 would be paid to appellant's attorney, pursuant
to provision 7 of the settlement agreement. The agency argues, however,
that once appellant's disability retirement paperwork is submitted to the
Office of Personnel Management (OPM), it receives no information from
OPM regarding the final annuity amount to which appellant is entitled.
The agency further argues that all that it is told is that an applicant's
retirement disability was approved; that since it was unaware of the
final amount of his annuity, the agency was unaware of the party that
was entitled to the additional $4,000.00: either appellant, pursuant
to provision 2 of the agreement, or appellant's attorney, pursuant to
provision 7. The agency argues that if appellant provides the agency
the annuity amount of his disability retirement, the additional $4,000.00
will be paid in accordance with provision 2 of the settlement agreement.
The agency also argues that appellant incorrectly asserted that the
additional $4,000.00 addressed in provision 2 was payable within thirty
days of the date that retirement disability was approved. The agency
argues that there is no time limit addressed in provision 2 regarding
when the $4,000.00 should be paid.
Finally, the agency argues that in accordance with the settlement
agreement, appellant was required to pay back any money he received in
excess of $25,000.00. The agency states that this amount �comes from any
amount he received from the retroactive promotion and the actual lump
sum of his $25,000.00.� The agency argues that appellant has not yet
repaid any money he may have received based on his retroactive promotion,
and it is therefore appellant, and not the agency, that has not complied
with the terms of the settlement agreement.
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement, the complainant shall notify
the EEO Director, in writing, of the alleged noncompliance within 30
days of the date when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the settlement agreement be specifically implemented or, alternatively,
that the complaint be reinstated for further processing from the point
processing ceased.
Appellant argues that the agency breached the settlement agreement by
improperly informing him that he had the responsibility for any tax
liability resulting from payments made pursuant to provisions 3 and
4 of the settlement agreement, though these payments were identified
as �tax free� in the settlement agreement. We reject appellant's
argument. We are, instead, persuaded by the agency's assertions that a
reasonable interpretation of the term �tax free� as articulated in the
settlement agreement is that payments made to appellant would have no
taxes deducted from the issued checks. Here, the record reflects that
appellant received two checks, with no taxes deducted, in the amounts
of $25,000.00 and $4,000.00 in accordance with provisions 3 and 4 of the
settlement agreement. Accordingly, the agency's finding of no breach of
provisions 3 and 4 of the settlement agreement was proper and is AFFIRMED.
Appellant also argues that the agency breached provision 2 of the
settlement agreement by not paying him an additional lump sum payment
of $4,000.00 identified in that provision. Our review of the settlement
agreement reflects that the manner of the $4,000.00 payment is dependant
upon the amount of a disability retirement annuity to which appellant
may be entitled. Specifically, provision 2 of the settlement agreement
indicates that if a disability retirement annuity is less than $12,300.00,
appellant will receive an additional lump sum payment of $4,000.00; but
provision 7 provides that if the disability retirement annuity equals
$12,300.00, the $4,000.00 lump sum referenced in provision 2 will be
paid as attorney's fees. The agency states on appeal that it is
unaware whether appellant's disability retirement annuity is above or
below $12,300.00; that it is merely aware that retirement disability
is approved; and that it receives no information from OPM regarding the
precise retirement disability amount. The record in this case contains
no evidence reflecting the precise amount of appellant's retirement
disability and as a consequence, we cannot ascertain from the present
record whether the $4,000.00 lump sum identified in provision 2 should
be paid to appellant or should be paid as attorney's fees pursuant
to provision 7. Accordingly, the agency's decision finding no breach
of provision 2 is VACATED. This matter is REMANDED to the agency for
further processing in accordance with the ORDER below.
Finally, we note that appellant alleged that the agency breached the
settlement agreement by not issuing the $4,000.00 lump sum payment
identified in provision 2, within thirty days of the date that the
disability retirement was approved. The Commission determines, however,
that provision 2 does not provide for the agency to issue the $4,000.00
lump sum payment within such a thirty-day time frame.
ORDER
Within thirty days of the date that this decision becomes final,
the agency shall provide appellant with the opportunity to submit
information concerning the amount of the disability retirement annuity
he has been awarded, including whether or not the disability retirement
annuity exceeds $12,300.00 per year. Within thirty days of the date
that appellant provides the information regarding the amount of the
disability retirement annuity, the agency shall issue payment of the
$4,000.00 lump sum identified in provision 2 of the settlement agreement
to appellant or to his attorney.
A copy of the agency's request to appellant for supplemental
information regarding his disability retirement annuity and a copy of
any documentation relating to the mailing of the $4,000.00 identified
in provision 2 to appellant or to his attorney must be sent to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 (Z1092)
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:
May 7, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations