0120060759
09-27-2007
Felix LeMarinel, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Felix LeMarinel,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120060759
Agency No. 4E800027201
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated February 27, 2006, finding that it
was in compliance with the terms of the September 29, 2003 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:
(9)(e) When complainant has used all of his sick leave and annual
leave, complainant may request administrative leave. The agency agrees
to pay complainant no more than 122 weeks of administrative leave.
Complainant may request and receive administrative leave for the time
period up to his 55th birthday (August 19, 2007). Complainant will not
receive more than 122 weeks of administrative leave.
(9)(f) Complainant may request LWOP instead of administrative leave
for any day up to his 55th birthday (August 19, 2007).
(9)(g) Complainant will receive a 'meets expectation' merit evaluation
every year until his 55th birthday.
By letter to the agency dated November 14, 2005, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the breach occurred with respect to Section 9(g) of the
settlement agreement, wherein the agency agreed that complainant would
receive a "meets expectation" merit evaluation every year until his
55th birthday. Complainant explained that under the agency's annual
performance evaluation system in place at the time, a meets expectation
rating would result in a raise in complainant's annual salary pursuant to
a formula which was modified annually in relation to the amount of money
the agency had available for salary raises. Complainant contends that
the agency modified its performance evaluation system a year after the
settlement agreement was signed and gave it a new name. Under the new
plan, the agency modified the names of the performance rating categories.
The new names for ratings did not include the name "meets expectation,"
but the concept of salary raises based on the individual's contribution
to the agency's overall performance remained the same.1
In order to accommodate the agency in running the Littleton Post Office,
complainant agreed to relinquish his position during the time of his paid
leave. It was agreed that his pay and all benefits would remain in effect
at the same level as if he had continued to hold the Postmaster position.
Complainant contends that in FY 2004, the managers and Postmaster received
an 8% salary raise on their annual performance reviews. He, however,
received only a 3% raise. Complainant argues that his meets expectations
should have corresponded to a High Contributor under the new system and
he should have received an 8.75% raise under the new performance plan.
In its February 27, 2006 FAD, the agency concluded that in FY 2004, the
agency changed from the Merit System for EAS performance evaluations to a
new system called the National Performance Assessment (NPA) of which Pay
for Performance was a part. For FY 2004, the agency rated complainant
as a contributor in Block 5 which equated to a salary increase of 3.0%.
The agency indicates that complainant's argument that he should have been
rated in Block 11 (high contributor) which equated to a salary increase
of 8.75% is flawed since his argument is based solely on the fact that
he was in the second to the top evaluation under the old Merit System,
so he should be in the second to the top evaluation in the new system.
The agency maintains that under the new performance system the specific
evaluation of "meets expectation" that complainant received pursuant to
the settlement agreement no longer exists. The agency also argues that
the settlement agreement contains no mechanism by which to translate the
meets objective into the new system. Therefore, the agency indicates
that based on the plain language rule, the only way to honor the
settlement agreement is to evaluate complainant by extending the Merit
System provisions of the program that were used in 2003 out until 2007.
Based on this process the agency contends that complainant should have
received an increase of 4.5% instead of the 3.0% that he was given.
The agency indicates that it has made this correction. Further, for FY
2005, the agency maintains that complainant should have received a 4.0%
increase in accordance with the merit system, and because these salary
increases will move complainant into the Fourth Quartile of the salary
range for a Level 24 EAS employee, his merit increase for FY 2006 and
FY 2007 will be 4.0% for each of those years. The agency indicates
that it is now in compliance with the settlement agreement.2
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 O 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 Commission finds that the agency is not in breach
of the settlement agreement. The Commission finds that the agency has
taken steps to insure that the terms of the agreement are followed.
We find complainant's attempt to establish what a "meets expectation"
rating would be under the new system is speculative and not supported by
the evidence of record. Additionally, since complainant has not shown
a breach of settlement, he is not entitled to attorney's fees.
Accordingly, the Commission finds that complainant has failed to show
that the agency breached the settlement agreement.
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
___9/27/07_______________
Date
1 Under the former merit raise system in effect for FY2003, there
were four categories for rating performance: Not Rated, Unacceptable,
Met Objectives/Expectations, and Far Exceeded Objectives/Expectations.
Under the new system, there are four overall categories: Non-Contributor,
Contributor, High Contributor, and Exceptional Contributor. In addition,
the new plan had the added feature of numerical scoring to reflect
sub-rating within each of the four categories.
2 In the agency's February 27, 2006 response, the agency also addressed
complainant's claim that the agency was in noncompliance with Section
9(e). Complainant specifically states however, that Section 9(g)
is the provision at issue. As such, the Commission is addressing only
that issue.
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0120060759
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120060759