01a50187
08-31-2005
Philip T. Olson, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Philip T. Olson v. Department of Transportation
01A50187
August 31, 2005
.
Philip T. Olson,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A50187
Agency No. 2-03-02002
DECISION
Complainant filed a timely appeal with this Commission regarding an
alleged breach of a July 26, 2004 settlement agreement.
On July 26, 2004, complainant and the agency entered into a settlement
agreement in resolution of the captioned complaint. The settlement
agreement provided that within sixty days of the effective date of the
agreement, the agency would provide complainant with the following:
2.a. Retroactive promotion to the GS-14, step 4, as of August 25, 2002,
such promotions to be duly recorded on the Complainant's SF-50 and in
his Official Personnel File and records;
2.b. Payment to the Complainant of the difference in pay and benefits,
between a GS-13, step 7 and GS-14, step 4 between and including the
dates August 25, 2000 through March 9, 2003;
2.c. Payment in the amount of $8,500 in check made payable to
[complainant] and [a named law firm]; and
2.d. Restoration of 80 hours of sick leave to Complainant's leave and
earnings balance and statements.
By letter to the agency dated October 5, 2004, complainant alleged
breach, and requested that the agency reinstate the underlying complaint.
Specifically, complainant alleged that the agency failed to implement
provisions 2.a. through 2.d.
After receiving no response from the agency, complainant filed the
instant appeal on October 13, 2004. In a document identified as �Brief
Supporting Request to Reinstate Complaint,� complainant stated that the
agency "had failed to provide any of the four items it agreed to provide
within 60 days."
On October 28, 2004, the agency issued a document titled "Agency's
Motion in Opposition to Complainant's Request to Reinstate Complaint."
Therein, the agency argues that complainant's request to have his
complaint reinstated was �untimely.� Specifically, the agency argues
that complainant provided notice to the agency of an alleged breach
on October 5, 2004, and that he filed an appeal with the Commission
on October 13, 2004. The agency notes that 29 C.F.R. � 1614.504(b)
provides that a complainant may file an appeal thirty-five days after
he has served the agency with the allegations of non-compliance.
On appeal, the agency argues that it was working diligently in
implementing the terms of the settlement agreement but that its "good
faith effort, however, has been impeded, in part, by complainant."
Regarding provision 2.c., the agency argues that complainant instructed
his financial institution to reject any electronic payment, other than his
bi-weekly salary payment. Specifically, the agency argued that on October
28, 2004, it attempted to wire a payment of $8,500 into complainant's
account but received a notice that the payment was "cancelled."
Regarding provision 2.b., the agency stated that this provision had
not been completed yet because it must be manually calculated by a
payroll systems specialist. The agency further stated that an automated
calculation and adjustment in pay status for a retroactive promotion
was only possible for 26 pay periods back from the current pay period.
The agency stated that complainant's back pay would be completed in
time for the pay period beginning December 5, 2004.
Regarding provisions 2.a. and 2.d., the agency stated, without
elaboration, that compliance with these provisions is �nearly complete."
As an initial matter, the Commission notes that complainant prematurely
filed the instant appeal. A complainant may file an appeal regarding
settlement breach 35 days after he has served the agency with the
allegations of non-compliance, but must file an appeal within 30 days
of receipt of an agency's determination. See 29 C.F.R. � 1614.504(b).
Here, complainant filed the instant appeal on October 13, 2004, having
received no agency response after he alleged breach only eight days
earlier, on October 5, 2004. We nonetheless determine that the agency
had adequate notice of the breach claims; and has had an opportunity to
respond and to submit evidence to the Commission. We therefore accept
complainant's 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 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).
Regarding provision 2.c., we determine that the record in this case
contains insufficient evidence for us to determine whether a breach of
this provision actually occurred. Specifically, we find that there is no
evidence showing that complainant actually received the $8,500 payment due
him under provision 2.c. The Commission determines that the agency made
a good faith effort in demonstrating its compliance with provision 2.c.
We note, for example, that the record contains a copy of the agency's
Schedule of Cancelled Electronic Fund Transfer Items for the November
2004 accounting period, which states that the agency's October 28,
2004 wire payment of $8,500 made out to complainant, was cancelled
and returned to its financial center (Check No. 9117478). The record
also contains a copy of an October 19, 2004 e-mail correspondence from
complainant's former attorney to an agency representative. Therein, the
former attorney stated that because he no longer represented complainant
that it would be inappropriate for him to accept a check of $8,500 on
complainant's behalf. Despite the above referenced documents, however,
we find that there is nothing in the record reflecting whether a check
was every tendered directly to complainant.
Regarding provisions 2.a., 2.b. and 2.d., we determine that the record
in this case contains insufficient evidence for us to determine whether
a breach of these provisions occurred. For example, the agency's
determination of no breach of provision 2.b., as articulated in its
Motion in Opposition to Complainant's Request to Reinstate Complaint,
is predicated upon statements by Human Resource officials. However,
the record contains no affidavit from the Human Resource official that
the Human Resource department purportedly fulfilled the obligations under
this provision.<1> Regarding provisions 2.a. and 2.d., we note that the
agency stated, without further elaboration that compliance with these
provisions is �nearly complete."
Accordingly, the agency's finding of no breach of provisions 2.a., 2.b.,
2.c. and 2.d. is VACATED. This matter is REMANDED to the agency for
further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
The agency shall supplement the record with evidence clearly showing
that it has complied with provisions 2.a., 2.b., 2.c., and 2.d. of the
settlement agreement. The supplementation of the record shall include any
documentation, such as an affidavit from the Human Resources official,
indicating whether complainant was retroactively promoted to the GS-14,
step 4, and that his promotion was recorded on his SF-50 and in his
Official Personnel File and records (provision 2.a.); a payment to
complainant of the difference in pay and benefits, between a GS-13, step
7 and GS-14, step 4 (provision 2.b.); evidence indicating that a check
was tendered directly to complainant in the amount of $8,500 (provision
2.c.); and restoration of 80 hours of sick leave to complainant's leave
and earnings balance (provision 2.d.). Within thirty (30) calendar days
of the date that this decision becomes final, the agency shall issue a
new decision concerning whether it breached provisions 2.a., 2.b., 2.c.,
and 2.d. of the July 26, 2004 settlement agreement.
A copy of the agency's new decision must be sent to the Compliance
Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
August 31, 2005
__________________
Date
1On appeal, the agency submits a copy a document identified as �Exhibit
C.� This document is an October 6, 2004 email from an employee of the
agency's Office of Chief Counsel (Employee A) to complainant, with a
copy of the email transmitted to a named agency employee (H). Therein,
Employee A stated that he had spoken to H; that he had communicated with
Human Resources and Budget, and that they are working to complete �all
actions that are promised to you.� Employee A further stated that �HR
spoke with payroll today and they apparently said that they attempted
to complete some of the actions a few days ago but the computer would
not allow it because it was the end of the fiscal year.�