01986056
02-09-2000
Johnny F. Peevy, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Johnny F. Peevy v. United States Postal Service
01986056
February 9, 2000
Johnny F. Peevy, )
Complainant, )
)
v. ) Appeal No. 01986056
) Agency No. 4E-2047-93
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
________________________________)
DECISION
Complainant filed the instant appeal on August 7, 1998 claiming that the
agency breached provisions 4 and 5 of a settlement agreement entered into
by the parties on March 18, 1998 (the settlement agreement is mistakenly
dated with the year 1988).<1>
The settlement agreement provided in pertinent part:
Complainant's records will immediately be changed to reflect the
retroactive promotion of Complainant to an EAS-24, Manager Distribution
Operations (MDO) position, effective March 20, 1993 to the present;
4. Complainant's backpay, interest, COLA's, and general increases, for
the retroactive promotion of Complainant to an EAS 24 position will be
computed and paid by the Postal Data Center in Minneapolis, Minnesota
within a 60 day period of time from the date that the parties sign this
Settlement Agreement.
The Agency shall pay Complainant the lump sum amount of $42,500.00 as
compensatory damages for mental and emotional distress, within 60 days
of the date that the parties sign this Settlement Agreement.
By letter dated June 12, 1998 complainant informed the agency that it
had breached provisions 3, 4, 5, and 8 (requiring the agency to direct
complainant's reassignment to an EAS 24 MDO position within 45 days)
of the settlement agreement. Complainant alleged that the agency had
failed to pay him the backpay and other payments listed in provision 4
and that the agency failed to pay him the compensatory damages as stated
in provision 5 of the settlement agreement. The agency did not issue
a decision on the breach of settlement claim prior to the filing of the
instant appeal.
By letter dated October 29, 1998 the Manager, Human Resources informed
complainant that in regard to complainant's claim that the agency
failed to comply with provisions 4 and 5 of the settlement agreement,
complainant was issued a check in the amount of $3,279 on September
14,1998. The October 29, 1998 letter further stated: "Your settlement
agreement was processed properly, and although it may have exceeded the
60 day time frame, the amount is correct. Accordingly the settlement
agreement has not been breached." The Commission deems the October 29,
1998 agency letter to be a determination by the agency that the agency
did not breach the settlement agreement.
On appeal, complainant admits that he was paid the compensatory damages.
Complainant does not challenge the amount of compensatory damages he
was paid. Complainant argues on appeal that the agency breached the
agreement by: (1) failing to pay him the backpay, benefits, and interest
for the EAS MDO retroactive promotion (provision 4); and (2) failing to
timely pay the compensatory damages (provision 5). Therefore, the only
provisions of the settlement agreement for which complainant is alleging
breach in this appeal are provisions 4 and 5.
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 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
(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)).
Provision 4
A. Time Limit
Provision 4 of the settlement agreement, which was signed by all parties
on March 18, 1998, provided that various payments were to be made to
complainant within sixty days of the date that the parties signed
the agreement. Sixty days from the date the settlement agreement
was signed was May 17, 1998. Therefore, to comply with provision 4,
the appropriate payments had to have been made to complainant by no
later than May 17, 1998. In a statement dated September 17, 1998, the
agency Labor Representative who signed the settlement agreement stated
that the backpay check was mailed to complainant on September 3, 1998.
The agency has not claimed that it made the payments specified in
provision 4 of the settlement agreement within the 60 day time frame
specified in provision 4 of the settlement agreement or that the agency
made the payment prior to complainant's June 12, 1998 breach claim.
Therefore, we find that the agency breached provision 4 of the settlement
agreement by failing to timely make the required payments in provision 4.
Because the payments due under provision 4 were paid late, we find that
complainant is entitled to an award of interest for the agency's delay
in making the payments due under provision 4 of the settlement agreement.
B. Amount of Payments
The record shows that complainant was issued a check dated September 4,
1998 in the amount of $3,279.29. Complainant states, and the explanation
provided with the check seems to indicate, that the $3,279.29 was payment
for merit increases for the EAS 24 MDO retroactive promotion. The record
also shows that complainant was issued a separate check dated September 4,
1998 in the amount of $23,583.22. Complainant states that the $23,583.22
payment was for backpay for the EAS 24 MDO retroactive promotion.
Complainant argues that the agency miscalculated the salary complainant
was due in back pay. Complainant argues that the underpayment in
backpay (from an incorrect salary determination) resulted in an
underpayment in all other payments due under provision 4 which are
based on complainant's salary. Complainant argues that the agency
computed complainant's backpay by using the "minimum" salary range for
the retroactive promotion. Complainant argues that pursuant to the
agency's Employee and Labor Relations Manual (�413.21), the agency
should have used the "maximum" salary schedule for an EAS 24 when
computing the backpay. Complainant argues that the backpay owed to
him is "$124,685.00 plus statutory interest compounded for each year
and rolled into the principle amount." Complainant also argues that
he is due $2,500.00 in merit award differences (for a total lump sum
of $127,185.00). Complainant states that the amounts claimed as due
by him should now be reduced by the $23,583.22 which has been paid.
Complainant does not explain whether his total claimed should also be
reduced by the $3,279.29 which was paid to complainant.
The record does not clearly show how the Postal Data Center in
Minneapolis, Minnesota computed the amounts due to complainant under
provision 4 of the agreement. The record does contain a three page
document entitled Corrected Salary Progression and numerous Notification
of Personnel Actions. Although the Corrected Salary Progression indicates
that the backpay was calculated by "slotting only to minimum of EAS-24",
the record does not address how this salary level was chosen for the
backpay computation. The agency does not indicate in the Corrected
Salary Progression how the amounts of $3,279.29 and $23,583.22 were
calculated. The Corrected Salary Progression does not reflect any
cumulative totals for backpay, interest, COLA's, or general increases.
The Commission cannot determine if the agency correctly calculated the
amounts due to complainant in provision 4 because the agency has not
clearly shown how it calculated those amounts. Therefore, the Commission
shall remand the matter so that the agency can supplement the record with
evidence clearly showing (in a detailed account) how it calculated the
amounts it paid to complainant pursuant to provision 4 of the agreement.
Provision 5
As the Commission noted above, sixty days from the date the settlement
agreement was signed was May 17, 1998. Therefore, to comply with
provision 5, the compensatory damages payments had to have been made
to complainant by no later than May 17, 1998. In a statement dated
September 17, 1998, the agency Labor Representative who signed the
settlement agreement stated that the compensatory damage check was
received in the accounting office in Denver on May 27, 1998, was
misplaced in accounting, and was "pick[ed] up" by complainant on June
15, 1998. The agency has not claimed that it made the compensatory
damage payment within the 60 day time frame specified in provision 5
of the settlement agreement or that the agency made the payment prior
to complainant's June 12, 1998 breach claim. Therefore, we find that
the agency breached provision 5 of the settlement agreement by failing
to timely pay the compensatory damages.
Because the payment due under provision 5 was paid late, we find that
complainant is entitled to an award of interest for the agency's delay
in making the compensatory damage payment due under provision 5 of the
settlement agreement. April v. Department of Agriculture, EEOC Appeal
No. 01963775 (June 5, 1997) (relying on section 717(d) of the Civil
Rights Act of 1964, 42 U.S.C. �2000e 16(d), as amended by section 114(2)
of the Civil Rights Act of 1991, Pub. L. 102-166 (Nov. 21, 1991)).
The agency's decision finding that it did not breach the time limit
portion of provisions 4 and 5 of the settlement agreement is REVERSED and
we REMAND the matter to the agency for further processing in accordance
with this decision and applicable regulations. The agency's decision
finding that it did not breach the portion of provision 4 of the
settlement agreement concerning the amount of payment due complainant
is VACATED and we REMAND the matter to the agency for further processing
in accordance with this decision and applicable regulations.
ORDER
Within 30 days of the date this decision becomes final the agency shall
pay complainant for the interest accrued on the sum of the payments
due under provisions 4 and 5 of the settlement agreement from May 17,
1998 to the date of payment. The agency shall determine the appropriate
interest due complainant pursuant to 29 C.F.R. �1614.501. A copy of
proof of payment of interest on payments due under provisions 4 and
5 of the settlement agreement shall be sent to the Compliance Officer
referenced herein.
The agency shall supplement the record with evidence clearly showing, in
a detailed account, how it calculated the amounts it paid to complainant
pursuant to provision 4 of the agreement. Within 60 days of the date this
decision becomes final the agency shall issue a new decision determining
whether the agency breached the portion of provision 4 of the settlement
agreement concerning the amount of payment due complainant. A copy
of the agency's new decision must be sent to the Compliance Officer
referenced herein.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. �1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
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:
February 9, 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 Equal Employment Assistant
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.