01952080
01-19-1996
DEAN H. CHILD, APPELLANT, v. FEDERICO F. PENA, SECRETARY, DEPARTMENT OF TRANSPORTATION, AGENCY.
DEAN H. CHILD, APPELLANT,
v.
FEDERICO F. PENA, SECRETARY, DEPARTMENT OF TRANSPORTATION, AGENCY.
Appeal No. 01952080
Agency No. 95-0285
January 19, 1996
DECISION
Appellant appeals to the Commission for a determination as to whether the agency has complied with the terms of a settlement agreement which the parties had entered into. See 29 C.F.R. ��1614.402, .504(b); EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency breached the settlement agreement.
BACKGROUND
A review of the record reveals that appellant, a Supervisory Labor Relations Specialist, GM-0233-14, with the agency's Federal Aviation Administration, filed a formal EEO complaint alleging that he was discriminated against on the bases of his sex (male), and in reprisal for prior EEO activity. It is unclear from the record what specific actions appellant was challenging in his formal complaint. Nevertheless, appellant and the agency entered into a settlement agreement with regard to the matters on April 29, 1994. The settlement agreement provided, in pertinent part, that the agency would increase appellant's pay to the GM-14, step 10 level, retroactive to the first pay period in May 1991. The parties agreed that the increase would be implemented within one pay period of the effective date of the agreement, and would affect appellant's pay only for purposes of retirement. Appellant was not to receive any backpay.
By letter dated October 31, 1994, appellant advised the agency that it had breached the terms of the settlement agreement by failing to adjust his pay. Specifically, appellant stated that he received a lump sum payment for his annual leave, which did not reflect the change in salary. In addition, appellant stated that his retirement annuity had not been adjusted. On October 26, 1994, the Manager of Civil Rights informed appellant that the agency's Payroll Office would complete the stipulated pay adjustment within two weeks. Thereafter, the agency issued a final decision dated November 18, 1994, finding that it had complied with the terms of the April 1994 settlement agreement. Thus, the agency denied appellant's request to reinstate his formal complaint.
On appeal, appellant asserted that the adjustment was to have been processed within two weeks of the execution of the settlement agreement. Appellant indicated that, six weeks after the settlement agreement was executed, his base pay remained the same. Appellant noted that he then received information from the Office of Personnel Management (OPM) on October 10, 1994, indicating that his annuity had not been increased. Appellant admitted, however, that a corrected Notification of Personnel Action form was completed after he notified the Director of Civil Rights of the matter in October 1994. Nevertheless, appellant asserted that the agency's delay in processing his pay adjustment caused him to suffer mental anguish and economic hardship. In addition, appellant stated that he relied upon the increased annuity as a condition of taking early retirement.
The agency countered that personnel at appellant's facility sent corrected Notification of Personnel Action forms adjusting appellant's pay to the Payroll Office on May 3, 1994, and again on May 27, 1994. The agency further stated that after being notified by appellant that his retirement annuity had not been adjusted in October 1994, the Payroll Office corrected the matter. The agency indicated that it paid the additional retirement deductions, and was notified by OPM that appellant received payment for the accrued annuity in February 1995. Thus, the agency asserted that appellant was made whole pursuant to the terms of the agreement. The agency noted that appellant admitted he did not raise the matter regarding the adjustment until five months after his retirement.
The record contains a copy of a Notification of Personnel Action form, showing that appellant retired from employment effective May 3, 1994. Appellant's total salary, including a locality adjustment, was $76,718.00, and although appellant's step level remained unchanged, his base pay was adjusted from $68,218.00 to $73,619.00. The record contains copies of additional Notification of Personnel Action forms dated May 2, 1994, adjusting appellant's pay for the periods from May 5, 1991, through January 9, 1994. The Manager of the Customer Service Branch represented that the original forms were sent to the Payroll Office on May 3, 1994, and faxed thereto on May 27, 1994. However, he indicated that an individual in the Payroll Office acknowledged the information was not entered into the system at that time.
The record also includes copies of Notification of Personnel Action forms dated October 13, 1994, which reflect the same pay adjustments. In addition, the agency indicated that retirement contributions for the periods from May 5, 1991, through May 3, 1994, would be paid from its funds. Finally, the record contains payroll records dated October 19, 1994, showing that the appropriate adjustments had been made to appellant's pay for purposes of retirement. The Manager of Customer Service indicated that the agency completed additional corrected forms in October 1994, in order to avoid possible complications on the part of OPM.
The Commission notes that OPM notified appellant on January 4, 1995, that it had received the corrected Notification of Personnel Action forms from the agency, and had adjusted his annuity. In addition, OPM notified the agency that it had paid appellant for the accrued annuity on January 3, 1995.
ANALYSIS AND FINDINGS
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 Roberts v. USPS, EEOC Appeal No. 01842193 (May 8, 1985). The Commission has further held that the face of the agreement best reflects the understanding of the parties. See Wilson v. EEOC, EEOC Appeal No. 01881684 (October 13, 1989).
A review of the record in this case reveals that the agency completed the necessary Notification of Personnel Action forms for appellant's pay adjustment on May 2, 1994. However, the Payroll Office did not enter the information onto the system at that time. Nevertheless, the agency subsequently completed additional Notification of Personnel Action forms after being notified by appellant that his retirement annuity had not been increased in October 1994. The record reveals that the adjustment was reflected in the agency's payroll records at that time. In addition, OPM paid appellant for the accrued increase in his annuity in January 1995.
Pursuant to EEOC Regulation 29 C.F.R. �1614.504 an agency has 35 days from the receipt of an appellant's allegation of breach to resolve the matter, or to cure any breach that has occurred. See Covington v. USPS, EEOC Appeal No. 01913211 (September 30, 1991). Appellant asserted that the agency's delay in processing his pay adjustment caused him to suffer mental anguish and economic hardship. However, appellant admitted that he was aware his retirement annuity had not been adjusted in June 1994, that is, over three months prior to notifying the agency thereof. In addition, Congress added compensatory damages to federal EEO statutes in order to make the perpetrators of intentional employment discrimination liable for non-wage economic consequences of their acts, to the extent necessary to provide full relief to victims of discrimination. See 137 Cong. Rec. at S 15, 484 (daily ed. Oct. 30, 1991). Compensatory damages are not available for allegations of breach since such allegations do not involve a determination of whether discrimination has occurred. See 29 C.F.R. �1614.504(c). Based upon a review of the record herein, we find that any alleged breach was promptly cured by the agency in accordance with the applicable regulations. Accordingly, the agency's decision not to reinstate appellant's complaint was proper, and is AFFIRMED.
CONCLUSION
Based upon a review of the record herein, it is the decision of the Commission to AFFIRM the final agency decision.
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. 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 (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:
Frances M. Hart
Executive Officer
Executive Secretariat