Jessie Johnson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 12, 2003
01a32229_r (E.E.O.C. Jun. 12, 2003)

01a32229_r

06-12-2003

Jessie Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Jessie Johnson v. United States Postal Service

01A32229

June 12, 2003

.

Jessie Johnson,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A32229

Agency Nos. 1-J-607-1119-95, 1-J-606-1317-94, 1-J-607-1191-95,

1-J-607-1230-95

DECISION

Complainant filed an appeal with this Commission claiming that the agency

was not in compliance with the terms of the March 25, 1999 settlement

agreement into which the parties entered in order to resolve her

complaints. The settlement agreement provided, in pertinent part, that:

Complainant will be given a career appointment, effective April

10, 1999. Complainant will be paid a lump sum payment of $15,000.

Complainant will be responsible for all taxes, if any. Although the

agency will not deduct taxes, the agency will issue a Form 1099 to

complainant and the IRS. Complainant will serve a 90-day probationary

period. If complainant is terminated during her probationary period,

the agency will document the reason(s) for termination, in writing,

and will provide a copy to complainant's representative.

Reasonable attorney fees to be provided. The issue of what is reasonable

is to be separated from these complaints through issuance of a FAD

(Final Agency Decision) pursuant to 29 C.F.R. 1614.

On April 22, 1999, complainant alleged that the agency breached

provision (1) of the settlement agreement, and appealed the matter

to the Commission. In Appeal No. 01994395 (February 28, 2001)

(complainant's subsequent request for reconsideration was denied in

Request No. 05A10493 (June 29, 2001)), the Commission, previously, found

that the agency did not breach the settlement agreement. Specifically,

the Commission indicated that the agency, by letter dated May 7,

1999, properly, informed complainant to report for work on May 10,

1999, but she did not report for work. The Commission also indicated

that the agency issued a check to complainant for $15,000 on May 17,

1999, and was apparently waiting for complainant to claim the check.

With regard to the payment of attorney's fees, the Commission found that

the settlement agreement did not provide a time table for such payment,

and as complainant did not report to work, it was not unreasonable that

the agency delayed the issuance of a decision on that matter.

By letter dated February 12, 2003, complainant files this instant appeal

alleging that the agency breached the settlement agreement. Specifically,

complainant claims that on April 5, 2001, she had returned the check

for $15,000 to the agency prior to her receipt of the Commission's

previous decision of Request No. 05A10493 in June 2001, and she,

thereafter has unsuccessfully attempted to obtain that check back from

the agency. Complainant also claims that the agency has failed to offer

her reinstatement as a full time regular employee with back pay from

at least June 2001. In response, the agency states that on May 27,

1999, a check for $15,000 was issued to complainant, but she refused

the check and it was returned to the agency. The agency also states

that on November 1, 2000, a replacement check for $15,000 was issued to

complainant, but the check was again refused and returned to the agency.

EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant

believes that the agency failed to comply with the terms of a settlement

agreement, the complainant should notify the Director of Equal Employment

Opportunity, in writing, of the alleged noncompliance with the settlement

agreement, within thirty (30) days of 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. 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 final decision.

The Commission has held that 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 (August 23, 1990). In addition, the

Commission generally follows the rule that if a 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 v. Building Engineering Services,

730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule

when interpreting settlement agreements. The Commission's policy in

this regard is based on the premise that the face of the agreement best

reflects the understanding of the parties.

With regard to the payment of $15,000, both parties admit that complainant

was not paid that amount in accordance with the settlement agreement.

Although the agency previously issued a check for that amount on two

different occasions, complainant refused to accept and returned those

back to the agency. It appears that complainant believed that since

the agency, purportedly, failed to comply with all of the terms of

the settlement agreement, she should not have received that payment.

However, since complainant now realizes that she is entitled to that

payment under the settlement agreement, the Commission, under the

circumstances, finds that the agency should, for the last time, reissue

a check for $15,000 to her under the settlement agreement. It is noted

that despite complainant's contentions on appeal, the Commission finds

that the agency is not required to pay interest on this amount since it

was not the agency's fault that the payment was delayed.

With regard to complainant's breach claim concerning her reinstatement,

it is noted that the Commission, in Appeal No. 01994395, found that the

agency complied with that matter since in its letter dated May 7, 1999,

it effectively offered complainant a career appointment within the agency.

Complainant, however, did not report to work. The settlement agreement

did not provide that the agency should keep offering complainant her

career appointment until she accepts such. Complainant does not contest

any other terms of the settlement agreement on this appeal.

Accordingly, the agency's decision finding no breach concerning

complainant's career appointment is AFFIRMED. The agency's decision

finding no breach concerning $15,000 payment to complainant is REVERSED

and the matter is REMANDED to the agency for implementation of the

agreement.

ORDER

The agency is ORDERED to specifically enforce the March 25, 1999

settlement agreement. The agency shall, within thirty (30) calendar days

of the date this decision becomes final, reissue complainant a check for

$15,000 in accordance with the settlement agreement. If complainant,

subsequently, returns this check back to the agency or refuses to accept

this check, the agency should treat her action as the abandonment of her

entitlement to this payment under the settlement agreement, and the agency

will no longer be obligated to comply with that term of the agreement.

The agency shall provide documentation of such payment to the Compliance

Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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 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)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 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 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 (T0900)

This decision affirms the agency's final decision/action 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 within ninety (90) calendar

days from the date that you receive this decision 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. 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 (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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

June 12, 2003

__________________

Date