01981647
03-30-1999
Devin Duncan, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Devin Duncan v. United States Postal Service
01981647
March 30, 1999
Devin Duncan, )
Appellant, )
) Appeal No. 01981647
v. ) Agency No. 4E-995-1006-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant timely appealed the agency's final decision finding that it was
not in breach of the settlement agreement entered into by the parties.
See 29 C.F.R. ��1614.402, .504(b); EEOC Order No. 960, as amended.
A review of the record reveals that appellant filed a formal EEO complaint
on December 11, 1995, alleging that he had been subjected to unlawful
discrimination on the basis of physical disability (back injury).
On November 7, 1996, the parties entered into a settlement agreement
which provided, in pertinent part, that:
[Appellant's] seniority date will be October 10, 1995.
[Appellant's] annual and sick leave will be credited as though [he]
had started work on October 10, 1995.
By letter to the agency dated September 11, 1997, appellant alleged that
the agency had breached the settlement agreement. Appellant asserted that
the agency failed to credit his annual and sick leave as contemplated by
the agreement, in that the agency gave appellant a leave computation date
of July 17, 1994. Appellant argued that he had two and one half years of
creditable military service which the agency failed to take into account,
and, as a result, the date from which his leave was computed should have
been April 10, 1993. Appellant further alleged that with his adjusted
seniority date he should have been eligible to sign up for the Thrift
Savings Plan (TSP) contributions as of January 1997, but was declared
ineligible by the agency. Finally, appellant contended that he was
improperly denied step increases that would be due him as a result of
the adjusted seniority date. Appellant requested, as remedial relief,
specific implementation of the settlement agreement, a sanction of
$5000 entered against the agency, and payment for lost pay and benefits
including, but not limited to step increases due him and TSP matching
contributions, deductions, and interest earnings.
In its final decision dated November 19, 1997, the agency determined
that although it failed to properly credit appellant's annual and sick
leave, the necessary corrections would be made to reflect the corrected
leave balances. The agency noted that while this correction would result
in a change in retirement computation date and TSP eligibility date, as
retirement benefits and TSP contributions were not specifically addressed
in the settlement agreement, no additional payments to appellant would
be made.
The Commission notes that the record contains a corrected Notification
of Personnel Action form which denotes appellant's Leave Computation
Date as May 9, 1993, and his Enter on Duty Date as October 10, 1995.
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. In addition, 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 consistently held that settlement agreements are
contracts between appellant 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 (5th Cir. 1984).
In the present case, the settlement agreement is silent with regard
to appellant's TSP and step increase eligibility. Absent a specific
reference to these issues on the face of the agreement, we find that
they are collateral matters that are beyond the scope of the agreement.
Pursuant to 29 C.F.R. �1614.504(b), an agency has 35 days from the
receipt of an appellant's allegation of breach to resolve the matter.
The Commission interprets that provision to mean that an agency has 35
days within which to cure any breach that has occurred. See Covington
v. USPS, EEOC Appeal No. 01912311 (September 30, 1991). In the instant
case, the record shows that appellant's seniority and annual and sick
leave computation dates were corrected by the agency to be consistent with
the settlement agreement. Although this correction occurred more than 35
days from the date appellant alleged breach, as specific implementation
of the settlement agreement was the remedy sought by appellant, we find
that the agency's actions have effectively provided appellant with all
of the relief to which he would be entitled.<1>
Accordingly, the agency's decision is AFFIRMED for the reasons set forth
herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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 (S0993)
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:
March 30, 1999
____________________________
DATE Ronnie Blumenthal, Director
1The Commission notes that appellant also requested a sanction against the
agency in the amount of $5000. Such a sanction would amount to punitive
damages, which are unavailable to federal employees. See Jones v.
Department of Health and Human Services, ern 05940377 (January 23, 1995),
citing Graham v. United States Postal Service, ern 05940132 (May 19, 1994).