01a00640
03-20-2000
Ella Randolph, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ella Randolph, )
Complainant, )
)
v. ) Appeal No. 01A00640
) Agency Nos. 2K-1300-91
William J. Henderson, ) 2K-1138-91
Postmaster General, ) 2K-1062-92
United States Postal Service, )
Agency. )
_______________________________ )
DECISION
Appellant filed the instant appeal with the Commission on October 5, 1999
alleging that the agency had not complied with a settlement agreement
entered into on June 25, 1991.<1> The settlement agreement entered into
on June 25, 1991 provided:
[Complainant] will be compensated for the difference between the number
of hours that she worked and the average number of hours worked by other
P.t.f.'s [part-time flexibles] in her pay location. This covers pay
period 11/90 thru pay period 4/91. There will not be reprisals for the
filing of this EEO complaint.
Complainant's breach of settlement allegation was first raised on August
29, 1991 and has been the subject of five prior Commission decisions.
Randolph v. United States Postal Serv., EEOC Appeal No. 01970008 (Apr. 8,
1999). The Commission incorporates the entire Background portion
of Randolph v. United States Postal Serv., EEOC Appeal No. 01941542
(May 19, 1995), and the entire recitation of the procedural history
set forth in Randolph, EEOC Appeal No. 01970008, into this decision.
The Background portion of Randolph, EEOC Appeal No. 01941542 and
the decision in Randolph, EEOC Appeal No. 01970008, fully set forth
the procedural history of the settlement breach allegation and the
Commission's attempts to have the agency recalculate the amount to be
paid to complainant pursuant to the agreement. Id.
By letter dated March 15, 2000 the agency submitted to the Commission
calculations of the amount it paid pursuant to the settlement agreement.
The agency found:
The difference of average pay hours of other employees in complainant's
pay location for pay period 11, 1990 to pay period 4, 1991 was 259.67
regular hours. Complainant has been reimbursed in the amount of 335.2
regular hours (which is an overpayment of 75.53 regular hours).
The average overtime hours was 217.52 hours. Complainant was paid for
202.75 overtime hours (an underpayment of 14.77 overtime hours).
Complainant was not paid night differential for the 259.67 regular hours.
Night differential was 10% of the hourly rate.
The agency argues that the overpayment of 75.53 regular hours exceeds the
underpayment of night differential plus underpayment of 14.77 overtime
hours. The agency converted the night differential underpayment and
the 14.77 overtime hours underpayment into regular hours as follows:
Night differential = 10% x 259.67 (amount due in regular hours) = 25.97
regular hours
Overtime rate = �time and one half�; 14.77 hours (overtime underpayment)
x 1.5 (overtime rate) = 22.13 regular hours
25.97 (regular hours conversion of night differential underpayment) +
22.13 (regular hours conversion of overtime underpayment) = 48.10 hours
of regular hours underpayment
The agency argues that because it has overpaid complainant 75.53 in
regular hours, the underpayment in night differential and overtime,
which is equivalent to 48.10 regular hours, does not constitute a breach
of the agreement, because in sum, there is still a total overpayment to
complainant.
The regulation set forth at 64 Fed. Reg 37,644, 37,660 (1999) (to be
codified as and hereinafter cited as 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 Commission's review of the record shows that the agency has made a
good faith effort in calculating the amounts due to complainant under the
settlement agreement and that the agency's calculations are supportable by
the record. The Commission notes that the settlement agreement did not
specifically provide an amount (or number of pay hours) due complainant.
The Commission's review of the calculations and of the documentation
submitted by the agency shows that the agency slightly miscalculated
the conversion of 14.77 hours of overtime underpayment to regular
hours. The correct conversion (14.77 x 1.5) is 22.155 regular hours.
This slight change does not alter the agency's conclusion that the
agency's overpayment of regular hours exceeded the underpayment for night
differential and overtime. Therefore, after examining the record as a
whole, we find that complainant has failed to meet her burden to show
that the agency has failed to comply with provision 2 of the settlement
agreement.
The agency's decision finding that complainant failed to show that the
agency breached provision 2 of the settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
March 20, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________ Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.