01A35383_r
02-25-2004
Waylan G. Thompson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Waylan G. Thompson v. United States Postal Service
01A35383
February 25, 2004
.
Waylan G. Thompson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A35383
Agency No. 4G-720-0130-00
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, issued on September 12, 2003, finding that it was in compliance
with the terms of a December 16, 2002 settlement agreement. See 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The December 16, 2002 settlement agreement provided, in pertinent
part, that:
4 a. Complainant will be returned to his prior position retroactive to
January 21, 2001, and will remain in a paid status up to and including
fourteen calendar days from the date that Complainant receives his back
pay under the terms of this agreement. Complainant's back pay shall be
offset by the amount of pay Complainant receives for the period November
30, 2002, through the termination of his status as a paid employee,
up to a maximum of 74 calendar days, as set forth in the terms of this
agreement.
4 b. Complainant will apply for disability retirement from the Postal
Service effective fourteen days after he receives his back pay under
the terms of Paragraph 4.a of this agreement. Complainant understands
and agrees that effective fourteen days after he receives his back pay,
he will remain on the rolls of the Postal Service solely for the purpose
of completing his application for disability retirement and that he shall
not be entitled to any other benefits of any nature or of payment of
any wages, salary or remuneration of any nature whatsoever in connection
with his continued placement on the Postal Service rolls.
4 c. The Postal Service agrees to pay Complainant all back pay for
the period January 21, 2001 through November 29, 2002. The Postal
Service agrees to issue payment within 60 calendar days after the date
all parties have signed this agreement. This payment will be reported
to the Internal Revenue Service on Form W-2 . . . .
By letter to the agency dated February 25, 2003, complainant alleged
that the agency breached the settlement agreement and requested that
the agency implement its terms. Specifically, complainant alleged that
the agency failed to deliver back pay within sixty (60) days as required
by paragraph 4(c).
On August 4, 2003, the agency tendered a check to the complainant for
$40,688.14, based on a gross amount of $70,182.44. Thereafter, on August
11, 2003, the complainant wrote to the agency again alleging breach of
the settlement. According to complainant, the agency was to provide back
pay from January 21, 2001, through fourteen days after payment of the
back pay was tendered, with an offset for up to 74 days. Based on this
interpretation of the settlement terms, and an end date of August 18, 2003
and the offset of 74 days, complainant contended that he was entitled to
865 days at the daily rate of $101.55. Consequently, complainant argued,
the agency's payment was approximately $17,700.00 short.
In its decision, the agency concluded that it did not violate the
terms of the settlement agreement. Based on a review of its records,
the agency found that the appropriate back pay calculations were made
and that complainant was properly paid $40,688.14.
On appeal, complainant reiterates the assertions raised in his August
18, 2003 letter discussed above. Complainant states that the agency
failed to pay him the appropriate amount within the required sixty days.
Complainant argues that provision 4(c) requires that payment be made
within sixty days and that provision 4 (a) provides for the calculation of
back pay if the agency's payment was untimely. Complainant argues that
the agency is therefore obligated to pay him an additional $17,658.31
in back pay.
In response, the agency asserts that it agreed to pay back pay for a
fixed period: January 21, 2001 through November 29, 2002, within
sixty days of the execution of the agreement. The agency argues that
complainant's interpretation of provision 4(a) conflicts with 4(c) and
the intent of 4(b). The agency contends that, reading provisions 4(a)
through 4(c) together, the parties intended to: compensate complainant
with a finite amount of back pay; return him to the agency rolls as an
active employee; and for complainant to apply for disability retirement
soon after he received the settlement payment. According to the agency,
complainant's interpretation "would lead to imposing a penalty against
the agency for every day it delayed issuing the check."
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 O 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).
The Commission agrees with the agency that the appropriate amount of back
pay was paid to complainant. Complainant cites language from provision
4(a) in arguing that the amount owed him increased with each day payment
was delayed; however, we are not persuaded by this assertion. We find
that a reasonable interpretation of the first sentence in provision 4
(a) refers to the time frame for which complainant is to be in a "paid
status", and does not refer to the time period for determining back pay.
As noted by the agency, it is provision 4 (c) that clearly sets forth
its obligation to pay complainant back pay "for the period January 21,
2001 through November 29, 2002." The record contains documentation
showing that this was the time period considered when the agency
calculated the amount owed to complainant, totaling in an adjusted
gross amount of $70,182.44 and a net amount of $40,688.14. Further,
the record shows a check for this amount was issued on July 17, 2003.
Therefore, we find that the agency has substantially complied with the
terms of the settlement agreement.
Accordingly, the agency's decision finding it was in compliance with
the agreement was proper and is hereby AFFIRMED.
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 25, 2004
__________________
Date