01A31949_r
03-31-2004
Tess C. Powell, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Tess C. Powell v. Department of Transportation
01A31949
March 31, 2004
.
Tess C. Powell,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A31949
Agency Nos. 2-00-2115; 2-00-2146
Hearing No. 100-A1-7867X
DECISION
Complainant filed an appeal with this Commission alleging that the agency
was in breach of the terms of the February 14, 2002 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
(1) Complainant shall be retroactively detailed to the Operational
Supervisor, ATC-12, MSS-2 position, effective during the time period
July 1, 1999 to October 31, 1999, solely for the purposes of bidding
for future positions, and Complainant will not receive any additional
payments as a result of this retroactive detail. Complainant's SF-50
personnel form shall so reflect.
(2) Complainant shall be retroactively promoted to the Operational
Supervisor, ATC-12, MSS-2 position, effective November 1, 1999, for
both seniority and pay purposes, and will be compensated accordingly.
Complainant's SF-50 personnel form shall so reflect. Agency shall pay
Complainant the difference between the pay she received and the pay she
becomes eligible to have received pursuant to this retroactive agreement.
(3) Effective the first pay period after this resolution agreement is
signed by both parties, Complainant shall assume the duties of Operational
Supervisor, ATC-12, MSS-2, at ZDC ARTCC. Complainant's SF-50 personnel
form shall so reflect.
(4) Complainant shall receive forty (40) credit hours.
By letter to the agency dated September 18, 2002, complainant alleged
that the agency was in partial breach of the settlement agreement, and
requested that the agency specifically implement its terms. Complainant
acknowledges that she was granted the position of Supervisor of Air
Traffic Control and was given back dated seniority. However, she alleges
that the agency failed to provide her the correct amount of back pay due.
Complainant states that the pay stub she received for the pay period of
June 1, 2002, reflects that pay adjustments were made for the pay period
13 in 2001 through Pay period 11 in 2002; however, she states that the
adjustments were incorrect. Specifically, complainant states that the
SF 50-B provided by the agency with an effective date of November 1,
1999, should reflect a salary of $101,171.00 instead of $96,413.00.
Additionally, complainant alleges that the agency failed to award her
the 40 credit hours she was to receive under the agreement.
When the agency failed to issue a final decision, complainant filed the
present appeal.
In response to complainant's appeal, the agency claims that it complied
with the terms of the agreement. Specifically, the agency states that
complainant was given her 40 credit hours during pay period #20 of 2002.
The agency notes that at the end of pay period #19, complainant's credit
hour balance was 9 hours 30 minutes. The agency states that at the
end of pay period #20, complainant's credit hour balance was 65 hours
45 minutes. The agency explains that the difference between the ending
balance of pay period #19 and that of pay period #20 is accounted for
the fact that complainant earned 16 hours and 15 minutes of credit time
in pay period #20 and was given 40 credit hours in pay period #20 per
the settlement agreement.
With regard to complainant's claim that she received the inappropriate
amount of back pay, the agency rejects complainant's argument that she
was entitled to a per annum salary of $101,171.00 effective November
1, 1999. The agency argues that its calculations correctly relied on
the annual salary of $96,413.00 effective November 1, 1999. The agency
noted that per the agreement, complainant was retroactively detailed from
a Traffic Management Coordinator (TMC) to the Operational Supervisor,
ATC-12 position, effective July 1, 1999, to October 31, 1999, solely
for the purposes of bidding and for future positions, and was not to
receive any additional payments as a result of this retroactive detail.
The agency noted that complainant's per annum salary increased from
$80,826.00 to $89,761.00 effective July 4, 1999; from $89,761.00 to
$90,479.00 effective August 1, 1999; and from $90,479.00 to $96,413.00
effective October 10, 1999. The agency states that on November 1,
1999, the temporary position ended and complainant's salary reverted
back to that of a TMC. The agency notes, however, that per provision
(2) of the settlement agreement, complainant was retroactively promoted
to the Operational Supervisor, ATC-12, effective November 1, 1999, for
both seniority and pay purposes. The agency states that it calculated
the back pay award for complainant based on the assumption that the
promotion she received on July 4, 1999, was permanent and not temporary
and that she was entitled to continue being paid a per annum salary of
$96,413.00 until January 2, 2000. The agency explains that on January 2,
2000, there was an across-the-board 3.8% Organization Success Increase,
and therefore complainant's retroactive salary went up on that date to
$101,171.00. Thus, the agency contends that complainant was not entitled
to a back pay award based on a salary of $101,171.00 starting November 1,
1999, since that salary did not go into effect until January 2, 2000.
The agency concedes, however, that due to errors in the payroll system,
in calculating the total back pay, two pay increases were missed in
the Consolidated Uniform Payroll System a result of which complainant
received $9,434.87 after taxes and deductions ($16,912.86 gross) less
than she should have received. The agency states that it intends to
pay this amount to complainant with expedition.
The record contains a copy of an �Integrated Personnel and Payroll System
Employee Balances Credit Hours� for complainant in pay period 19 of 2002
showing a balance of 9 hours and 30 minutes. The record also contains a
printout for pay period 20 showing a balance of 65 hours and 45 minutes,
with complainant earning 16 hours and 15 minutes of credit time during
that pay period.
The record contains four SF-50s reflecting complainant's promotion to
the position of Supervisory Air Traffic Control Specialist. First,
the record contains an SF-50 showing that complainant was promoted
to the Supervisory Air Traffic Control Specialist effective July 4,
1999, at a salary of $89,761.00. A second SF-50 shows that effective
August 1, 1999, complainant received an organization success increase
adjusting her salary from $89,761.00 to $90,479.00. A third SF-50 shows
that complainant received an ATC Reclass Increase effective October 10,
1999, increasing her salary from $91,203.00 to $96,413.00. Finally, the
record contains an SF-50 showing that complainant received an organization
success increase effective January 2, 2000, increasing her salary from
$96,413.00 to $101,171.00.
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 present case, we are unable to determine whether the agency
breached provision (2) of the February 14, 2002 settlement agreement.
According to provision (2), complainant was to be retroactively promoted
to the Operational Supervisor, ATC-12 position, effective November 1,
1999, for both seniority and pay purposes. The record discloses that
complainant was promoted to the Operational Supervisor, ATC-12 position,
and was paid the per annum salary of $96,413.00, in effect as of November
1, 1999. The record discloses that thereafter effective January 2,
2000, an across-the-board 3.8% Organization Success Increase raised
the salary for the Operational Supervisor position to $101,171.00.
We find that complainant has failed to show that she was entitled to
receive the 3.8% increased salary prior to January 2, 2000, the date the
across-the-board increase was implemented. However, we note that in its
Response to Complainant's Appeal, the agency concedes that due to errors
in the payroll system, two pay increases were missed in the Consolidated
Uniform Payroll System resulting in complainant receiving $9,434.87 less
than she should have. There is no evidence that complainant received
the $9,434.87 the agency conceded was owed to her. Further, we note that
the agency failed to present any evidence documenting the calculations it
made regarding complainant's back pay and failed to provide the specific
dates and amounts of the two pay increases referenced in its response
to complainant's appeal. Thus, the Commission is unable to determine
whether complainant received the appropriate amount of back pay due.
With regard to complainant's claim that the agency breached provision
(4), we find that the agency has shown compliance with this provision.
According to provision (4), the agency was required to award complainant
40 credit hours. The record reveals that in pay period 20 of 2002,
complainant was given 40 credit hours.
Accordingly, the agency's final decision that it complied with provision
(4) is AFFIRMED. The agency's decision that it complied with provision
(2) is VACATED and the matter is REMANDED to the agency for further
processing in accordance with the Order herein.
ORDER
The agency shall supplement the record with documentation showing whether
it has complied with provision (2) of the February 14, 2002 settlement
agreement. Specifically, the agency shall provide evidence documenting
the calculations made regarding complainant's back pay, including the
dates and amounts of the two pay increases referenced in its Agency's
Response to Complainant's Appeal. Additionally, the agency shall provide
evidence indicating whether it paid complainant the $9,434.87 it conceded
was due to her. Within 30 days of the date this decision becomes final,
the agency shall issue a decision on whether the agency breached provision
(2) of the settlement agreement. A copy of the decision must be submitted
to the Compliance Officer, as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 (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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
March 31, 2004
__________________
Date