0120113837
01-25-2012
Narisella M. Ryan, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Headquarters), Agency.
Narisella M. Ryan,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120113837
Agency No. 6X000002011
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the Agency dated July 25, 2011, finding that it was
in compliance with the terms of the 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.
BACKGROUND
Prior to the events at issue, Complainant was employed by the Agency
as an EEO Program Analyst, EAS-23, in St. Louis Missouri. Believing
that the Agency subjected her to unlawful discrimination, Complainant
contacted an Agency EEO Counselor to initiate the EEO complaint process.
On November 20, 2009, Complainant and the Agency entered into a settlement
agreement to resolve the matter. The settlement agreement provided,
in pertinent part, that:
(a) Placement in EEO ADR Position in St. Louis
The Agency agrees to place the Complainant in the position of
EEO ADR Specialist EAS Level 19 at the St. Louis Office. The
placement will be effective November 22, 2008. However, the
Complainant will be allowed to work out of the Headquarters
office until the shipment of her household goods. In placing
Complainant in this position, the Agency agrees that she will
receive salary protections of an affected employee which are two
years of saved grade and indefinite salary protection as provided
by the regulations dealing with affected employees. In making
this placement the Complainant understands she will receive
limited relocation benefits as described below.
On June 17, 2011, Complainant alleged that the Agency was in breach of the
settlement agreement, and requested that the Agency specifically implement
its terms.1 Complainant alleged that before she signed the settlement
agreement which reflects she will receive two years of saved grade and
indefinite salary protection, she confirmed that the two years of saved
grade would also apply in 2009 and 2010 for her Pay for Performance
(PFP). However, in her breach claim, she stated that she received a
lump sum for her 2010 PFP instead of the expected 5% pay increase.
In its July 25, 2011 FAD, the Agency concluded it was not in breach
of the agreement. The Agency noted that the agreement did not provide
for a specific amount or percentage for PFP raises. The Agency provided
documentation that Complainant was retained at the EAS-23 grade for two
years following the execution of the settlement agreement and, although
placed in the EAS-19 grade at the end of the two year period, continues
to receive an EAS-23 salary. The Agency further provided documentation
that Complainant received PFP awards on January 17, 2009, and January 16,
2010. In addition, she received a “pay adjustment” increase in April
2010.2 At all times since the execution of the settlement agreement,
Complainant’s salary was significantly above the top step salary for
the EAS-19 grade. Accordingly, the Agency contended that it had fully
complied with the provisions of the settlement agreement.
The instant appeal followed.
ANALYSIS
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. Dep’t of Def., 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. Dep’t 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. U.S. Postal Serv.,
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 settlement agreement provides no specificity
with respect to pay raises under the Agency’s PFP system. The Agency
has provided documentation that it complied with the agreement by
keeping Complainant at the EAS-23 grade level for two years, and then
retaining her at the EAS-23 salary level indefinitely.3 Moreover,
the Agency provided information which Complainant has not disputed
that she received PFP lump sum pay raises in January 2009 and 2010.
While Complainant argues that she should have been awarded a 5% salary
increase instead of a lump sum award for her PFP, the language of the
settlement agreement does not specifically express this intent by the
parties. Complainant asserts that she was concerned about this issue at
the time she was negotiating the settlement agreement, and she could have
requested specific language in the agreement addressing the manner in
which PFP was to be awarded. However, such language was never included
in the agreement. Therefore, Complainant has not shown that the Agency
breached the terms of the settlement agreement.
In her appeal, Complainant also references a second settlement she
entered into in April 2010, but her intent is not clear. If Complainant
is asserting that the second agreement was also breached, she must inform
the Agency of the breach as set forth in that agreement.
The Agency’s decision finding no breach of the settlement agreement
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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 25, 2012
__________________
Date
1 Complainant initially filed a new EEO complaint on the matter. However,
realizing Complainant was actually alleging a breach of settlement, the
Agency administratively closed the complaint and processed the matter
as a breach of settlement agreement claim.
2 It appears from the record that the April 2010 salary adjustment
was the result of a second settlement agreement on a different matter,
executed on April 7, 2010.
3 It appears that in July 2011, Complainant was promoted to the position
of Manager, Human Resources, EAS-24, thereby ending her indefinite salary
protection at the EAS-23 level.
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0120113837
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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