01A01943r
07-18-2002
Julieta L. Bonacua, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Julieta L. Bonacua v. United States Postal Service
01A01943
July 18, 2002
.
Julieta L. Bonacua,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A01943
Agency No. 1F-946-0075-97
Hearing No. 370-98-X2370
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated December 9, 1999, finding that it
was in compliance with the terms of the December 17, 1998 settlement
agreement into which the parties entered. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b) and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
It is understood and agreed that neither party will seek to set aside
this Settlement Agreement on account of any dispute which arises over
the implementation of the terms of this Agreement. The Complainant may
seek either reinstatement or enforce [sic] if the agency is alleged to
have breached this Settlement Agreement pursuant to those parts of the
Equal Employment Opportunity Commission regulations which address the
matter of enforcement.
. . .
The agency shall pay Complainant back pay from 1 February, 1997 to the
date that she returns to work after the medical clearance, and restore
all benefits earned (sick and annual leave). Complainant's back pay
shall be paid pursuant to the Back Pay Act and ELM 346.
By letter to the agency dated November 21, 1999, complainant, through
her attorney, alleged that the agency breached the settlement agreement.
Specifically, complainant alleged that she was having difficulties
obtaining the required payment from the agency, and considered the
agency's failure to respond to be noncompliance with the agreement.
She requested that the agency enforce the settlement or provide them
with appeal rights within the time limits of the new regulations.
On November 29, 1999, complainant's attorney sent another letter to
the agency in response to the agency's reply of November 24, 1999.
In her letter, complainant's attorney wrote �[t]he taxes are withheld
based on the W-4 the employee signs and is calculated pay period by pay
period rather than a flat amount...The unemployment insurance was not an
agreed deduction. UIAB and the courts have consistently held that under
Title VII this is not to be deducted from back pay.� The attorney also
argued that complainant is entitled to Sunday premium for a portion of
the back pay period.
In its December 9, 1999 FAD, the agency concluded that it did not breach
the settlement agreement. The agency stated that complainant was issued
payment in the gross amount of $70,268.65. Regarding complainant's
objections to the deduction of the unemployment compensation and the
28% federal tax rate, the agency argued that this matter does not fall
under a settlement agreement provision. The agency further argued
that the Sunday premium is not mentioned in the settlement agreement.
Moreover, the agency argued that Part 436 of the ELM �states that only
those employees who have been scheduled to work on a Sunday are eligible
to receive the premium. The complainant certainly wasn't scheduled to
work during the period she had been separated.�
On appeal, complainant's attorney raised four issues: �(1) Is the agency
entitled to deduct the Unemployment Insurance benefits during the time
that she was denied employment?; (2) Is the appropriate tax rate 28%
for the tax consequences?; (3) Is Complainant entitled to overtime and
Sunday premiums pay as part of her back pay calculations?; and (4) Is
Complainant entitled to an award of attorney's fees and costs for this
appeal?� With respect to claim (3), the attorney argued �the reason
why she was not at work to work overtime or on Sundays was because the
agency refused her work...The agency does not claim that she refused to
work.� Therefore, the attorney concluded that complainant is eligible
to receive the Sunday premium.
The agency presents no new contentions on appeal.
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 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).
Upon review of the documents in the record submitted by the agency
and complainant, the Commission determines that the agency did not
breach the December 17, 1998 settlement agreement. With respect to
the deduction of unemployment insurance, the agency has stated that
the State of California requires the withholding of unemployment
compensation from all back pay awards. Complainant has not provided
evidence challenging the agency's assertion. Therefore, we find that
complainant has not established that the agreement was breached when
unemployment insurance was deducted. Regarding the appropriate tax rate,
the Commission notes that it is proper for the agency to withhold taxes.
To the extent that the agency may have erred in accessing the rate,
the excess paid will be returned to complainant through the Internal
Revenue Service process. Disputes regarding the appropriate tax rate
are outside of the Commission's jurisdiction. Lastly, with respect to
payment for the Sunday premium, the settlement agreement language does
not require the agency to consider the premium in determining the amount
of back pay. If complainant had intended the back pay award to reflect
the Sunday premium she should have included such a provision in the
settlement agreement. See Jenkins-Nye v. General Service Administration,
EEOC Appeal No. 01851903 (March 4, 1987).
Accordingly, the agency's decision finding no settlement 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
July 18, 2002
__________________
Date