Peggy S. Johnson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Capital Metro), Agency.

Equal Employment Opportunity CommissionJan 26, 2009
0120082672 (E.E.O.C. Jan. 26, 2009)

0120082672

01-26-2009

Peggy S. Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Capital Metro), Agency.


Peggy S. Johnson,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Capital Metro),

Agency.

Appeal No. 0120082672

Agency No. 1K-211-0028-05

DECISION

On May 29, 2008, complainant filed an appeal with this Commission after

the agency failed to respond to complainant's March 11, 2008 claim that

the agency failed to comply with the terms of the September 13, 2006

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:

(8) The Agency agrees to enhance the Agency's retirement contribution

for the Complainant for each of the three preceding years by retroactively

promoting the Complainant from an EAS-17 as follows: beginning on January

24, 2004 the contribution will be for an annual salary of $68,151.00 as

reflecting her promotion to an EAS-24; beginning on January 22, 2005 the

contribution will be for an annual salary of $76,725.00 as reflecting her

promotion to an EAS-24; and beginning on January 21, 2006 the contribution

will be for an annual salary of $86,316.00, as reflecting her promotion

to an EAS-24. Complainant agrees to waive receipt of any increased back

pay from the Agency. The Agency agrees to deposit into the Civil Service

Retirement and Disability Fund all amounts of increased civil service

retirement deductions from pay and agency contributions required under

5 U.S.C. section 8334 based upon the personnel actions described in

the preceding sentences of this paragraph. The agency also agrees to

prepare Individual Retirement Record forms for submission to the Office

of Personnel Management reflecting the increased pay levels resulting

from the preceding sentences of this paragraph.

(9) The Agency will request the Office of Personnel Management to

prepare an estimated annuity calculation for the Complainant by no later

than October 13, 2006 of the retirement benefit amount she will receive

as a result of the provisions in paragraph 8 above.

By letter to the agency dated March 11, 2008, 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 although she should have a "High-3 Average Salary1" amount

of $77,366.00, she received a "Your Federal Retirements Benefits"

brochure from the Office of Personnel Management (OPM) indicating that

her "High-3 Average Salary" is only $70,717.00.

On appeal, complainant further requests that the agency enhance its

retirement contributions so that complainant's retirement benefit is

based upon a "High-3 Average Salary" amount of $77,366.00. The agency

contends that complainant's claim should be dismissed because the

Commission previously affirmed the agency's February 15, 2007 decision

finding no breach of the settlement agreement in Johnson v. United

States Postal Service, EEOC Appeal No. 0120071764 (July 26, 2007),

req. for recons. den. EEOC Request No. 0520070869 (September 21, 2007).

Upon review of this matter, we determine that complainant is raising the

same matter addressed in our previous decision. Complainant's latest

breach claim is that the OPM's "High-3 Average Salary" does not reflect

the enhanced retirement contributions promised in the agreement. However,

in our previous decision, we found that the agency had complied with

the terms of the agreement. Specifically, the Commission in EEOC Appeal

No. 0120071764 found that "[a] review of the record indicates that the

agency has complied with [provision (8) of the settlement agreement]

by retroactively promoting complainant to an EAS-24 at the salary

levels indicated for the limited purpose of increasing complainant's

retirement contributions as stated in the provision." In addition, in EEOC

Appeal 0120071764, the Commission further found that the agency was in

compliance with provision (9) of the settlement agreement. Specifically,

the Commission stated that "[t]o the extent that complainant is here

asserting breach of provision (9) because the agency's annuity estimate

differs from that provided directly to her by OPM, we again find no

agency breach...the agreement only requires that the agency request (and

deliver) the annuity estimate, not that it certify its accuracy." Thus,

we dismiss complainant's instant breach claim for stating the same claim

previously decided by the Commission. 29 C.F.R. �1614.107(a)(1).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

__January 26, 2009________________

Date

1 According to OPM, the monthly retirement benefit is based in part

on the highest average salary employees receive during any three year

period while employed. However, the relevant three-year period does

not always occur in the last three years of employment.

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0120082672

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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