Alfred F. Zinno, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 20, 1999
01972341 (E.E.O.C. Apr. 20, 1999)

01972341

04-20-1999

Alfred F. Zinno, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Alfred F. Zinno v. United States Postal Service

01972341

April 20, 1999

Alfred F. Zinno, )

Appellant, )

)

v. ) Appeal No. 01972341

) Agency No. 4-H-330-1715-96

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

_________________________________)

DECISION

Appellant filed the instant appeal with the Commission alleging that the

agency breached a settlement agreement entered into on October 17, 1996.

The EEO settlement agreement entered into on October 17, 1996 provided

that appellant would withdraw "EEO Complaint No: 4-H-330-1715-96" based

on the stipulations that:

Solely in an effort to resolve this matter at the lowest possible level,

it is agreed that [appellant] will receive payment plus interest of FY-95

EAS Variable Cash award of 3%. Payment of FY-95 Merit Award Payment of 2%

of salary for award. The [appellant] is assured that no Reprisal action

shall stem as a result of this complaint.

Appellant submitted a copy of a letter dated December 19, 1996, in which

he informed the agency that it had failed to comply with the portion

of the settlement agreement requiring the agency to pay appellant the

FY-95 Variable Cash award of 3% and the FY-95 Merit Award Payment of

2% of salary for award. Appellant filed the instant appeal with the

Commission on January 23, 1997.

There is no indication in the record that the agency issued any decision

on the matter prior to the instant appeal. The agency has submitted a

document entitled Agency Response to Compliance Order dated September

12, 1997. This Agency Response is captioned as being before the Merit

Systems Protection Board (MSPB) (docket number AT-0752-95-1180-C-1).

In the September 12, 1997 Agency Response the agency stated:

Attached are copies of documents which were forwarded to the Accounting

Service Center, on November 21, 1996 . . . which verify that the

appellant's PS Form 50 history was corrected to reflect his COLA Roll-In

effective February 3, 1996.

Additionally, you will find . . . the instructions directing payment of

2% merit retroactive to March 2, 1996, plus the merit equity payment

issued PP 20/96 for the period of February 3, 1996 to March 2, 1996.

Also, the agency advised the Accounting Center, that the appellant was

entitled to interest, and along with his FY-95 variable Pay award.

. . . the agency contends that we have complied with the Board Order.

The record does not contain any specific reference by the agency to

compliance with the EEO settlement agreement. The Commission notes that

the MSPB issued an Opinion and Order dated January 6, 1998 in MSPB Docket

Number AT-0752-95-1180-X-1 in which the instant EEO settlement agreement

is apparently referenced.

EEOC Regulation 29 C.F.R. �1614.504(a) provides that any settlement

agreement knowingly and voluntarily agreed to by the parties shall be

binding on both parties. If the 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." 29 C.F.R. �1614.504(a). The complainant

may request that the terms of the settlement agreement be specifically

implemented or request that the complaint be reinstated for further

processing from the point processing ceased. Id.

Settlement agreements are contracts between the appellant 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

(Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th

Cir. 1938). In reviewing settlement agreements to determine if there is

a breach, the Commission is often required to ascertain the intent of the

parties and will generally rely on the plain meaning rule. Wong v. United

States Postal Service, EEOC Request No. 05931097 (Apr. 29, 1994) (citing

Hyon v. United States Postal Service, EEOC Request No. 05910787 (Dec. 2,

1991)). This rule states that if the writing appears to be plain and

unambiguous on its face, then its meaning must be determined from the

four corners of the instrument without any resort to extrinsic evidence

of any nature. Id. (citing Montgomery Elevator v. Building Engineering

Service, 730 F.2d 377 (5th Cir. 1984)).

The record does not contain evidence showing that the agency paid

appellant as required in the EEO settlement agreement. Therefore,

we can not determine if the agency has complied with the agreement.

The Commission shall remand the matter so that the agency may supplement

the record with evidence showing that it paid appellant the monies due

under the EEO settlement agreement.

The Commission REMANDS the matter to the agency for further processing

in accordance with this decision and applicable regulations.

ORDER

The agency shall supplement the record with evidence showing that it paid

appellant the monies due under the EEO settlement agreement. Within 30

days of the date this decision becomes final the agency shall issue a

decision regarding appellant's breach allegation. A copy of the agency's

new decision must be sent to the Compliance Officer referenced herein.

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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court. 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 filed your

appeal with the Commission. 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.

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:

April 20, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations