01986411
02-11-2000
Thomas A. Danberger, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Thomas A. Danberger, )
Complainant, )
)
v. ) Appeal No. 01986411
) Agency No. 4F-920-0074-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant appeals to the Commission for a determination as to whether
the agency has complied with the terms of a settlement agreement into
which the parties entered. (see 64 Fed. Reg. 37,644, 37,660 (1999)
(to be codified and hereinafter cited as 29 C.F.R. �1614.504(b)); EEOC
Order No. 960, as amended.<1>
ISSUE PRESENTED
The issue on appeal is whether the agency breached the settlement
agreement.
BACKGROUND
Complainant filed a formal EEO complaint wherein he claimed that he
was discriminated against on the bases of his race (Caucasian), color
(white), sex (male), and age (48) when on October 18, 1996, he did not
receive a merit award and when he was subsequently denied a cash award
(EVA) under the Economic Value Added Variable Pay Program.
The complaint was accepted for investigation. Subsequent to the
investigation, complainant requested a hearing before an EEOC
Administrative Judge. The complaint was resolved by a settlement
agreement entered into on June 12, 1998. The agreement stated in relevant
part that:
The Complainant's merit rating for 1996 shall be changed to �meets
expectations.� As a result of this change the Complainant shall be
entitled to back pay and/or a salary increase in the amount he would
have received had his original 1996 merit rating been recorded as �meets
expectations.� Any Copies of the EAS Merit Performance Evaluation form
... located in either the Complainant's OPF and/or merit file shall be
removed and destroyed. The Agency shall not refer to that evaluation
form in any future action, related to the Complainant's performance.
In addition, the Complainant shall be considered eligible for his
1996 EVA payment. As a result of his change, the Complainant shall be
entitled to back pay in the amount he would have received if his EVA
had not been denied.
By letter dated July 16, 1998, complainant notified the Senior EEO
Complaints Processing Specialist that the agency had failed to comply
with the settlement agreement. Complainant requested that the agreement
be enforced with regard to the aforementioned portion of the settlement.
On August 21, 1998, complainant filed the instant appeal with the
Commission. Complainant states that the agency failed to respond within
35 days of his claim of noncompliance. Complainant requests that the
terms of the settlement agreement be specifically implemented.
In its final decision dated August 31, 1998, the agency determined
that the settlement agreement has not been breached. The agency stated
that management maintains that complainant received his merit increase
for 1996. Further, the agency stated that complainant was informed
that in order for him to receive the EVA back payment, it must first
be approved by the Area Vice President before it can be processed.
The agency determined that management has attempted to contact
complainant's representative, but he failed to respond.
In support of his appeal, complainant submits a declaration from his
representative that to the best of the representative's knowledge
and belief, the agency did not attempt to update him regarding its
noncompliance with the settlement until it issued its final decision.
In response, the agency asserts that management provided documentation
demonstrating that complainant did receive a satisfactory rating for 1996.
The record contains complainant's merit history. According to this form
and the statement accompanying it, complainant received his merit pay
increase on January 4, 1997, as his merit award for Fiscal Year 1996.
This document further states that complainant's performance rating was
�Met Expectations� and therefore, no adjustment was required for issuance
of a merit award.
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter
cited as 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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
Fed. Reg. 37,644, 37,660 (1999) (to be codified and hereinafter cited
as 29 C.F.R. �1614.504(b)) provides that the agency shall resolve the
matter and respond to the complainant, in writing. If the agency has not
responded to the complainant, in writing, or if the complainant is not
satisfied with the agency's attempt to resolve the matter, the complainant
may appeal to the Commission for a determination as to whether the
agency has complied with the terms of the settlement agreement or action.
The complainant may file such an appeal 35 days after he or she has served
the agency with the allegations of noncompliance, but must file an appeal
within 30 days of his or her receipt of an agency's determination.
The Commission has consistently held that settlement agreements are
contracts between complainant and the agency, and 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, 381 (5th Cir. 1984).
In the instant matter, complainant claimed that the agency breached the
settlement agreement by
not implementing the aforementioned portion of the agreement concerning
his merit rating, merit award, and the back pay related to the EVA.
Upon review of the record, we note that it appears that complainant's
performance rating for Fiscal Year 1996 was changed from �Unacceptable�
to �Met Expectations�. Further, the record reflects that complainant
received a merit pay award for Fiscal Year 1996 on January 4, 1997.
However, there is no documentation in the record to establish that any
copies of the EAS Merit Performance Evaluation form wherein complainant
received an �Unacceptable� rating have been removed from complainant's
official personnel file and/or merit file and destroyed. With regard
to the back pay owed to complainant in terms of the EVA, we note that
the agency stated that the payment must first be approved by the Area
Vice President before it can be processed. Given that there is no
further information on this issue, we are unable at this juncture to
determine to whether the agreement has been breached. Accordingly,
the agency's final decision finding that there was no breach of the
settlement agreement is hereby VACATED. This matter is REMANDED for a
supplemental investigation pursuant to the ORDER below.
ORDER
The agency is ORDERED to take the following action:
Supplement the record with evidence that complainant's prior EAS Merit
Performance Evaluation form reflecting the �unacceptable� rating has
been expunged from complainant's OPF and/or merit files;
Supplement the record with evidence regarding whether complainant has
received the EVA back payment, the calculations thereof, and/or the
status of that payment;
Supplement the record with any other relevant evidence regarding
complainant's allegations of breach.
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall issue a final decision regarding complainant's
allegations of breach, clearly setting forth the reasons for the
determination.
A copy of the agency's new final decision must be sent to the Compliance
Officer as referenced below.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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:
February 11, 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 1 On 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.