01A22773_r
08-06-2002
Gloria C. Carvalho, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Gloria C. Carvalho v. Department of the Navy
01A22773
August 6, 2002
.
Gloria C. Carvalho,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A22773
Agency No. DON 99-30270-002, DON 00-30270-001, DON 00-30270-003
DECISION
Complainant filed an appeal with this Commission from a determination
by the agency dated March 29, 2002, finding that it was in compliance
with the terms of the October 5, 2001 settlement agreement into which
the parties entered.
The settlement agreement provided, in pertinent part, that:
(5)(a) Retroactively temporarily promote Complainant from July 27,
1998 - April 11, 1999 as a Congressional Affairs Specialist, GS-301-13,
Step 3 to a Congressional Affairs Specialist, GS-301-14, Step 1.
(i) In accordance with this provision, pay complainant back pay
computed in accordance with 5 C.F.R. 550.805. The back pay shall
start at the beginning of a pay period. . . . .
(5)(c) Retroactively (sic) temporary promote complainant from a NH-343-III
to the NH-340-IV position of Program Manager for the Ship Donations
Program Office (PMS 334) for the time period April 12, 1999 - December
31, 1999.
In accordance with this provision, pay complainant back pay computed in
accordance with 5 C.F.R. 550.805 for the retroactive temporary promotion.
The back pay shall start at the beginning of a pay period. . . . .
(5)(i) Assign an overall contribution score [OCS] of 84 for the 2000
[Contribution-based Compensation and Appraisal System (CCAS)] rating
period and pay complainant back pay computed in accordance with 5
C.F.R. 550.805. The back pay shall start at the beginning of a pay
period. . . . .
By letter to the agency dated February 8, 2002, 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 agency failed to provide complainant with documentation
indicating how the pay calculations were made and note whether the
payments included appropriate interest on the back pay tendered to her.
Complainant also claimed the agency failed to increase her expected
overall contribution appraisal score (EOCS) for the 2000 and 2001 rating
periods. Complainant argued that with the increase in her OCS to 84 for
1999 and 2000, the corresponding EOC scores for 2000 and 2001, which are
computed from the previous year's salary, should have also increased,
by agency regulations.
In its March 29, 2002 determination, the agency concluded that no breach
of the settlement agreement occurred. The agency found that the October
5, 2001 settlement agreement did not specify that complainant was to
receive any interest payment on the back pay award, and accordingly,
the agency owed her none. The agency noted that complainant had, in
error, received a check in the amount of $1,821 representing interest.
However, the agency stated that it would initiate action to collect this
amount as the payment was made to complainant incorrectly. The agency
also found that nothing in the agreement stated that complainant would
receive an increase in her ECOS for the 2000 and 2001 rating periods.
On the contrary, the agency replied that the parties specifically
considered complainant's salary during settlement negotiations and the
agency ultimately refused to raise complainant's salary, which is tied
to her ECOS for the years in question.
On appeal, complainant notes that 5 C.F.R. 550.805, the section of the
Federal Register referenced by the settlement agreement, specifically
provides for the payment of interest in 5 C.F.R. 550.806 when back
pay is awarded after an employee has suffered an unjust or unwarranted
personnel action. Complainant argues that if the agency had intended
not to agree to pay the interest due, that should have been memorialized
in the agreement. Similarly, complainant states that for the agency
to raise retroactively complainant's actual OCS for 1999 and 2000 to a
score of 84 under the agreement, and then not increase her EOCS for the
subsequent years is a significant departure from its own pay regulations.
Such a departure, complainant concludes, would also need to be in the
plain language of the agreement.
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, our review of the settlement agreement indicates
that the provisions in dispute are plain and unambiguous. Complainant
acknowledges that the agreement is silent regarding the issue of interest
on the back pay award and the EOCS. Because the agreement is clear and
unambiguous and does not explicitly provide for the payment of interest on
the back pay award, nor an increase in complainant's EOCS, we find that
the agency was not required under the terms of the settlement agreement
to pay interest on the back pay award, nor raise complainant's EOCS.
Allen v. Department of the Interior, EEOC Request No. 05970352 (August
11, 1999). Accordingly, the agency's final decision finding no breach
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
August 6, 2002
__________________
Date