01A14077_r
10-31-2002
Edward G. Shannon, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Edward G. Shannon v. Department of the Treasury
01A14077
October 31, 2002
.
Edward G. Shannon,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A14077
Agency No. 97-3033B
DECISION
Complainant alleged breach of the November 21, 1997 settlement
agreement entered into with the agency. The agency found no breach and
complainant appealed. On appeal, the Commission vacated the agency's
decision with respect to back pay and interest, and remanded the issue
for a supplemental investigation. Shannon v. Department of Treasury,
EEOC Appeal No. 01983793 (June 8, 2000). On remand, the agency issued
another decision, dated May 4, 2001, finding no breach of the agreement,
and complainant appealed.
The settlement agreement provided, in pertinent part, that:
The [a]gency shall grant [complainant] a WGI [within-grade increase]
retroactive to September 28, 1996, and shall grant [complainant] back
pay for the period September 28, 1996 to March 2, 1997 based on said
retroactive WGI, in accordance with the Back Pay Act, 5 U.S.C. � 5596.
. . .
By execution of this [a]greement, [complainant] voluntarily and
irrevocably requests and accepts a voluntary reduction in grade from
his position of GM-14 Supervisory Revenue Agent to the position of
Revenue Agent, GS-13, Step-10[.]
In its final decision, the agency concluded that complainant received
all funds due to him under the settlement agreement. Specifically, the
agency found that complainant received backpay of $565.60, plus interest
of $83.50, minus withholding and deductions, for a net payment of $408.96.
It also finds that complainant's WGI for pay periods one through four
(1 - 4) of 1997 took place at the same time as complainant's voluntary
demotion. As a result, the agency explains that complainant received
an overpayment of $38.08, which was deducted from complainant's paycheck
in pay period 4 of 1998.
On appeal, complainant contends that no overpayment occurred. He claims
that his downgrade to GS-13 was not authorized until December 29, 1997,
and effective January 4, 1998. Complainant also contends that his earning
and leave statements identify him as a GM-14 through December 20, 1997
(pay period twenty-five [25]). In pay period twenty-six (26), ending
January 3, 1998, complainant is identified as a GS-13. Complainant does
not expressly challenge the payment of $408.96 as incorrect.
Complainant also alleges that the agency violated his rights by failing
to provide him with the �critical elements� for his new position until
August 1998. Complainant also contends that management questioned
him about advising a former subordinate that she did not need to file
a tax return in 1993. Complainant claims that by questioning him,
management failed to provide him with union representation and violated
his �Weingarten Rights.� In a separate correspondence, addressed to
agency personnel but copied to the Commission, complainant claims that
he was discriminated against in violation of the Veterans Employment
Opportunities Act and in retaliation for his prior EEO activity when he
was not considered for a temporary GS-14 Lead Program Analyst position.
In response, the agency clarifies that complainant received the back pay
he was due in pay periods 1 - 4 in pay period 26 of fiscal year 1997.
It contends that the $38.08 in back pay was properly deducted, as a
result of a miscalculation in pay period 26 when his GS-13 demotion
hit the same pay period. Complainant received the $408.96 due to him
for the 1996 pay periods via manual calculations and a separate check
issued outside of the pay and leave system. The agency asserts that it
will address complainant's other issues in a separate decision.
Any settlement agreement knowingly and voluntarily agreed to by the
parties, reached at any stage of the complaint process, is binding on both
parties. See 29 C.F.R. � 1614.504(a). 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). It is complainant's burden to
demonstrate the agency's noncompliance by a preponderance of the evidence.
See Moore v. Department of the Navy, EEOC Appeal No. 01931395 (April 19,
1993), req. for recons. den. EEOC Request No. 05930694 (April 7, 1994).
The record includes calculations for the deductions taken from
complainant's fiscal year 1996 backpay of $565.60 and interest of $83.50,
resulting in a net payment of $408.96. The record also contains a
copy of complainant's �Payroll Listings� for fiscal year 1997. In pay
periods 1 - 4, the listings include two separate calculations � one
for his salary without the WGI (net pay of $2017.29), and one for his
�corrected� salary with the retroactive WGI (net pay of $2064.05).
Complainant is listed as a GM-14 in all four pay periods.
Complainant's demotion appears as a �corrected� statement on his earnings
records in pay period twenty-five (25), as opposed to pay period 26 as
both parties claim. The net payment complainant received as a GS-13
step 10 in pay period 25 is greater than the payment he received in pay
period 26. Presumably, this reflects the back pay complainant was due
for pay periods 1 - 4, and the $38.08 overpayment. Complainant has not
presented any persuasive argument to show that the agency's calculations
were incorrect. Therefore, the Commission finds that complainant failed
to prove a breach of the agreement.
Complainant's other claims, concerning the delay in receiving his
�critical elements,� violations of his union rights by questioning
him, and the failure to select him for a temporary GS-14 position,
are not addressed by the November 21, 1997 settlement agreement.
The agency properly identified these incidents as independent claims of
discrimination, and processed them separately from his breach claim.
See 29 C.F.R. � 1614.504(c)(�Allegations that subsequent acts of
discrimination violate a settlement agreement shall be processed as
separate complaints . . . .�). The Commission will not address these
matters in the present appeal.<1>
CONCLUSION
Accordingly, the agency's final decision is AFFIRMED.
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 (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
October 31, 2002
__________________
Date
1The Commission notes, however, that it has no jurisdiction over the
protection of complainant's union or veteran rights.