01994192
05-01-2001
Elmer J. Shavers, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Elmer J. Shavers v. Department of the Army
01994192
May 1, 2001
.
Elmer J. Shavers,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01994192
Agency No. 98AR0561E; 98AR0116E; 98AR0722E
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) dated March 22, 1999, finding that it was in compliance
with the terms of the October 19, 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:
The Army agrees to pay complainant the amount of $1,500.00 ($500.00
per complaint), without withholding taxes, and will furnish a W-2 to
the complainant;
The Army agrees to pay attorney's fees, in the amount of $1,000.00,
within 60 days of the agreement;
The Army agrees to provide administrative support to the complainant
and expedited processing of her applications for discontinued service
retirement, disability retirement, or workers' compensation; and,
Pending review and concurrence with the facts by the Civilian Personnel
Advisory Center and the Red River Army Depot Compensation Office, the
Army will write a letter to the Office of Workers' Compensation Programs
concurring with the complainant's request for reconsideration of wage
earning capacity.
A second settlement agreement dated October 29, 1998, created a sixty-day
time limit for the completion of requirement (1) set forth above.
By letter to the agency dated February 16, 1999, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency implement its terms. Specifically, complainant alleged that
the agency failed to pay her the balance of the $1,500 settlement amount.
In its March 22, 1999 FAD, the agency concluded that complainant had
been paid the full amount and that it was therefore in compliance
with the terms of the settlement agreement. On appeal, complainant
contends that the agency breached the terms of the settlement agreement
by withholding taxes from the $1,500.00 settlement amount. In its
response, the agency admitted that it did in fact err when it withheld
taxes from the settlement amount, but states that it realized the error,
even before complainant brought the mistake to its attention, and issued a
second check to make up the total amount owed to complainant. Therefore,
the agency states, it is in compliance with the settlement agreement.
The record indicates that the first check from the agency was issued to
complainant on the payday for the pay period ending November 21, 1998,
in the amount of $953.25. This was the amount which the agency claims
was sent in error, as the terms of the settlement agreement establish
that no taxes were to be withheld from the total. After discovering
this error the agency sent complainant a second check for $546.75, on
the payday for the pay period ending December 5, 1998. On February 4,
1999, complainant sent a letter to the agency requesting that it issue
another check in the amount of $546.75, as the December 5, 1998, check
had not been received. The agency has stated that this may have been
due to complainant's change of address. A replacement check was issued
by the agency on March 30, 1999.
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).
In the instant case, the terms of the October 29, 1998, settlement
agreement established a sixty-day time limit for the payment of the
$1,500.00 to complainant. Though the entire amount was not sent to
complainant until March 30, 1999, we find that the agency did not breach
the settlement agreement as to the payment of the $1,500.00. The agency
has provided documentation to show that while it erred in withholding
taxes from the first check sent to complainant, the second check for the
remainder was mailed within the sixty-day limit. The record reflects
that complainant formally notified the agency of her change of address
on December 15, 1998, after the second check had already been issued.
Once she alerted the agency that she had not received that check in the
amount of $546.75, the agency promptly began the necessary procedures
for the issuance of a replacement check for that amount. Therefore,
the Commission finds that the agency did provide complainant with the
full amount of $1,500.00 within the sixty-day time limit.
Complainant also raised two issues for the first time on appeal which
were not raised below pursuant to 29 C.F.R. �1614.504(a), which states
that a complainant must notify the agency, in writing, of the alleged
noncompliance within 30 days. Complainant claims that the agency failed
to pay attorney's fees within the sixty-day time limit set out in the
settlement agreement, and that the agency fraudulently signed her name
to the �Statement of Claimant Requesting Recertified Check� form, dated
February 4, 1999. The Commission declines to comment on these issues
as complainant did not raise these matters in her letter to the agency
alleging breach of the settlement agreement.
In conclusion, as to the issue of the payment of $1,500.00 to complainant,
the Commission finds that there has been no breach of the settlement
agreement and the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
May 1, 2001
__________________
Date