01A43497_r
09-13-2004
William C. Barrett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
William C. Barrett v. United States Postal Service
01A43497
September 13, 2004
.
William C. Barrett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43497
Agency No. H1-000-0008-03
DECISION
Complainant filed an appeal with this Commission, alleging that the agency
breached the settlement agreement into which the parties had entered.
The settlement agreement, fully executed on November 24, 2003, provided,
in pertinent part, that:
1. The agency agrees that the complainant, who retired from the agency
on September 1, 2003, will be promoted to the position of sergeant
retroactively, the date of said retroactive promotion being September
1, 2002. The agency then will make a lump sum payment to the complainant
equal to the difference in base pay between (1) the amount he would have
received from September 1, 2002, to September 1, 2003, if he were paid
as a sergeant (one year) subject to all tax and other usual withholdings;
and (2) the amount of base pay he was actually paid as a non-supervisory
postal police officer for that time period. Any payment draft shall
be made payable to [complainant] and mailed to [complainant]...within
a reasonable time of the signing of this agreement, and the EEOC's
dismissal of this case. In addition, the complainant's annuity shall be
adjusted to reflect his retroactive promotion to sergeant on September 1,
2002; and therefore, his monthly annuity will be increased to reflect the
inclusion of this agreed one-year time period in the rank of sergeant
(Sept.1, 2002 to Sept. 1, 2003) in his �high three' years of service,
for purposes of the annuity calculation.
By letter dated April 19, 2004, complainant filed the instant appeal
to the Commission alleging that the agency had breached paragraph 1 of
the settlement agreement. Specifically, complainant alleged that the
agency failed to provide any payments to him. Complainant noted that
he had called the agency but had received no response.
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 proper procedure for raising an allegation of breach of the terms
of a settlement agreement is also set forth in 29 C.F.R. � 1614.504(a)
which provides that if a complainant believes that the agency has
failed to comply with the terms of a settlement agreement, then the
complainant shall notify the EEO Director of the alleged noncompliance
within 30 days of when the complainant knew or should have known of
the alleged noncompliance. EEOC Regulation 29 C.F.R. � 1614.504(b)
further provides that 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.
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).
In a June 18, 2004 response to complainant's appeal, the agency asserted
that complainant had failed to serve the agency with written notice
of the alleged breach as required by 29 C.F.R. � 1614.504 (a) and that
therefore, the appeal should be dismissed. The agency further asserted
that it had paid complainant as required by the settlement agreement.
As an initial matter, the Commission finds that complainant failed to
follow the procedure for alleging breach of a settlement agreement.
Nonetheless, the Commission will treat the agency's response to
complainant's appeal as its determination that it did not breach paragraph
1 of the settlement agreement. Regarding the allegation of breach,
the Commission finds that the agency is in substantial compliance with
paragraph 1 of the settlement agreement and its compliance, in this case,
was accomplished within a reasonable time. The record contains a payroll
journal for the ninth pay period of 2004, and electronic mail messages
transmitted between agency personnel on June 14, 2004, and June 17, 2004,
regarding payments made to complainant. Complainant has not objected
to the agency's computations.
Accordingly, the agency's finding of no breach is 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
September 13, 2004
__________________
Date