0120101350
05-06-2011
Carol Barbour, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Carol Barbour,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120101350
Agency No. 2-1-1035-5
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final Agency determination (FAD)
dated January 5, 2010, 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
Complainant filed an EEO complaint, which was resolved with a settlement
agreement the parties entered into on September 8, 1986. The settlement
agreement provided, in pertinent part, that:
After successfully completing the probationary period and LSM training
period, (Complainant) will receive a seniority date of October 27, 1984.
In Barbour v. United States Postal Service, EEOC Request No. 05921004
(May 20, 1993), the Commission interpreted this provision to require,
in part, that the seniority date of October 27, 1984, to be reflected in
the enter on duty date, leave computation date, and retirement computation
date in Complainant's Notification of Personnel Action PS Form 50 (PS-50).
The Commission found that the Agency breached the settlement agreement
when it did not make Complainant's PS-50 reflect this seniority date,
and ordered it to correct the PS-50 to reflect this, including her
enter-on-duty, leave computation, and retirement computation dates.
Complainant received annuity estimates on a possible retirement.
One dated August 25, 2009, reflects a retirement compensation date
of October 27, 1985, and another dated September 3, 2009, reflects
retirement compensation and annuity compensation dates of October 27,
1985. On November 2, 2009, effective October 24, 2009, the Agency changed
Complainant's leave computation and retirement computation dates to July
19, 1986. According to the PS-50 reflecting this change, this was done
because of excess leave without pay (LWOP) in 1985, 1986, 1991 and 1992.
The PS-50 indicated the Agency would process any necessary salary and/or
leave adjustment.
On November 17, 2009, on a pre-complaint counseling intake form,
Complainant contended that the Agency breached the settlement agreement
and violated the Commission's order [in EEOC Request No. 05921004] when
it changed her leave computation and retirement computation dates to July
19, 1986. At the time, she was a Mail Processing Clerk at the Agency's
Pittsburgh Processing & Distribution Center facility in Pittsburgh, PA.
According to Complainant, after receiving the September 2009 annuity
estimate, she gave copies of the settlement agreement and the Commission's
order to a Human Resources Specialist.
On December 9, 2009, effective December 5, 2009, the Agency changed
Complainant's leave compensation and retirement compensation dates back
to October 27, 1984. According to the PS-50 reflecting these changes,
the adjustment was made to provide credit for periods of excess LWOP
in 1991 and 1992 that should have been entered as LWOP-IOD (presumably
injured-on-duty). The PS-50 indicated that the Agency would process
any necessary salary and/or leave adjustment.
In its January 5, 2010 FAD, the Agency concluded that it was not in
breach of the settlement agreement because it corrected Complainant's
retirement compensation and leave compensation dates in accordance with
the settlement agreement.
CONTENTIONS ON APPEAL
The Agency argues that upon being notified by the Complainant of
its error, it promptly cured the error, and did so within 35 days of
Complainant's notice of breach, within the opportunity period to cure
a breach. 29 C.F.R. � 1614.504(b). It also argues that Complainant's
appeal was not properly perfected because it was filed by Complainant's
representative, who is not an attorney.
Complainant argues, in essence, that the Agency did not cure its failure
to comply with the EEOC's order. She contends that the annuity estimate
reports dated August 25, 2009, and September 3, 2009, were issued in
conjunction with voluntary early retirement offers which included lump
sum payment incentives of $15,000. She contends that she did not retire
because she believed the harm created by the incorrect annuity date
would have cost her about $70 monthly. As remedy, she asks that the
Commission order the Agency to allow her retire and make her whole with
the voluntary early retirement lump sum incentive of $15,000. She also
argues that she identified her representative in her intake form, which
she signed, suggesting he had the right to file an appeal on her behalf.
ANALYSIS AND FINDINGS
As an initial matter, we accept Complainant's appeal. In her intake form,
Complainant designated her representative in writing, and she has not
rescinded this. There is no dispute that the representative was acting
on Complainant's behalf.
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).
The Commission has held that pursuant to 29 C.F.R. � 1614.504(b), an
agency has 35 days from the receipt of a complainant's allegation of
noncompliance to resolve the matter, or cure any breach that occurred. The
Commission has further held that if an agency cures a breach during
the 35 day period after the filing of a breach claim, it will be deemed
to be in compliance. Eckholm v. Department of Veterans Affairs, EEOC
Appeal No. 0120091193 (April 29, 2009).
The Agency went out of compliance with the settlement agreement and
the order in EEOC Request No. 05921004 when it erroneously changed
Complainant's leave compensation and retirement compensation dates away
from October 27, 1984. While it promptly corrected these errors upon
written notification by Complainant to the EEO office, Complainant argues
that this was not a cure of the breach and failure to comply with the
EEOC's order because it dissuaded her from taking advantage of voluntary
early retirement opportunities, which had $15,000 lump sum incentives.
We find that the Agency cured the breach and is in compliance with the
Commission's order in EEOC Request No. 05921004. Complainant does not
contend that the incorrect leave compensation and retirement compensation
dates impacted her eligibility to receive a $15,000 lump sum retirement
incentive payment. While Complainant correctly believed the Agency
was using the incorrect leave compensation and retirement compensation
dates in calculating her retirement, this would not prevent her
from retiring since she could still pursue getting these
dates corrected pursuant to the settlement agreement and EEOC Order
during and after the retirement process, with concomitant adjustment to
her benefits.
Accordingly, the FAD 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), 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
May 6, 2011
__________________
Date
2
0120101350
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101350