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