0120082825
08-28-2008
Nina S. Cheng, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Nina S. Cheng,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082825
Agency No. 4F-900-0141-08
DECISION
Complainant filed a timely appeal with this Commission from a letter of
determination by the agency dated May 16, 2008, finding that it was in
compliance with the terms of the February 19, 2008 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 February 19, 2008 settlement agreement provided, in pertinent part,
that:
"This agreement is to finally correct and enforce a previous EEO agreement
#1F-901-0151-04, dated Aug. 26, 2004, which states management will adjust
to Level 5 all pay that was incorrectly paid at Level 4. From various
pay periods 12/06 through 02/08 [sic]. Since the previous agreement was
not adhered to fully, management agrees to expedite this new agreement.
Management also agrees to correct any future pay discrepancies in a timely
manner. Management also agrees to recommend to the Injury Comp. Office
to re-write employee's temporary limited duty job offer dated August
27, 2007 to reflect job level work currently being performed (Level 5)
in the Mailing Primary section.
The position of Data Conversion Operator (DCO) Level 4 is no longer valid
in P/L 495. The employee is requesting that she be placed in a valid job
title/Level/PL to prevent this problem from happening again...[District
Complement Coordinator] agrees to follow-up with [Complainant] within
(30) thirty days to ensure progress on her case is being made."
By letter to the agency dated April 30, 2008, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that following the signing of the agreement,
the agency failed to pay her the back pay for the difference between
Level 4 and Level 5 (pay periods December 2006 through February 2008).
Complainant also alleged that the agency failed to correct her status
from Data Conversation Operator to Mail Processor.
In its May 16, 2008 letter of determination, the agency found no breach.
The agency determined that the District Complement Coordinator (DCC)
who signed the agreement, stated that she would find out if any back
pay complainant was due for the relevant periods would be adjusted to
Level 5, and whether Labor Relations submitted the back pay worksheets
to payroll. The agency further determined that the DCC also stated that
she would make a recommendation to the Injury Compensation Office (ICO)
to place complainant in a Level 5 assignment and "was informed that job
offers are only made to the same level the employee currently holds."
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).
Here, the settlement agreement provides for an express agency obligation
to adjust to Level 5 all pay that was incorrectly paid to complainant
at Level 4 for pay periods December 2006 to February 2008; and to make
a recommendation to the ICO to re-write complainant's temporary limited
duty job offer dated August 27, 2007 to reflect the Mailing Primary
section job she is performing.
In its final decision, the agency concluded that the DCC would find out
if any back pay complainant was due for the relevant periods would be
adjusted to Level 5 and whether Labor Relations submitted the back pay
worksheets to payroll; and make a recommendation to the ICO to place
complainant in a Level 5 assignment. Based on the foregoing, we find
that the agency breached the agreement by failing to pay complainant
back pay for the relevant time periods and to recommend to the ICO to
re-write complainant's temporary limited duty job offer dated August 27,
2007 to reflect the Mailing Primary section job she is performing.
To remedy a finding of breach, the Commission may order reinstatement of
the underlying complaint, or enforcement of the agreement's terms. See 29
C.F.R. � 1614.504(c). We find that in this particulate circumstance,
the proper remedy is to order the agency to comply with the terms of
the agreement.
Accordingly, the Commission REVERSES the agency's finding of no breach
and REMAND this matter so that the agency can undertake remedial action
in accordance with the ORDER below.
ORDER
The agency is ORDERED to implement the terms of the settlement agreement
by undertaking the following action:
Within fifteen (15) calendar days after the date this decision becomes
final, the agency shall adjust to Level 5 all pay that was incorrectly
paid to complainant at Level 4 for pay periods December 2006 to February
2008, and recommend to the Injury Compensation Office to re-write
complainant's temporary limited duty job offer dated August 27, 2007 to
reflect the Mailing Primary section job she is performing.
The agency is further directed to submit a report of compliance,
as provided in the "Implementation of the Commission's Decision."
The report shall include all supporting documentation verifying that the
corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0408)
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 28, 2008
Date
2
0120082825
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120082825