Elizabeth Nash, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 8, 2003
01A33724_r (E.E.O.C. Dec. 8, 2003)

01A33724_r

12-08-2003

Elizabeth Nash, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Elizabeth Nash v. United States Postal Service

01A33724

December 8, 2003

.

Elizabeth Nash,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A33724

Agency No. H0-0121-01

DECISION

Complainant filed a timely appeal with this Commission from an agency

final decision dated May 2, 2003, finding that it complied with a July 31,

2001 settlement agreement. The Commission accepts the appeal. See 29

C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.

The July 31, 2001 settlement agreement provided, in pertinent part, that:

The Postal Service will conduct a desk audit of all four �MSSC's� prior to

the end of August 2001, with a copy of the complete evaluation packages

provided to [complainant]. The Postal Service agrees to use outside

contractors to conduct all four desk audits should that be necessary

to meet the August 2001 deadline. All parties agree to abide by the

outcome of the desk audits...Should the desk audit determine that all

�MSSC's� should be compensated at EAS-25, the Postal Service agrees to

discuss compensation [with] [complainant] retroactive to as early as

November 18, 1998.

By letter to the agency dated October 22, 2001, complainant contends that

after completing the above referenced desk audits, the agency then failed

to provide her with the complete evaluation packages. Specifically,

complainant averred that agency provided seven pages of essentially

meaningless data, rather than a description of audit methodology and

evaluation factors used, and also failed to provide copies of the

supporting materials submitted by herself and the other three managers

to the auditor. Complainant requested reinstatement of her complaint.

In a final decision dated May 1, 2002, the agency determined that it

complied with the settlement agreement, finding that the desk audits were

conducted in a timely manner, by two Customer Requirements Analysts; and

that complainant was provided with the results. The agency determined

that the audit results properly reflected that complainant's position

was correctly graded at an EAS-24 level, and that the seven pages of

data constituted the package for the desk audits. Complainant filed an

appeal from the agency's decision.

On appeal, the Commission determined that the agency failed to provide

evidence to show that the seven pages it provided to complainant

constituted the �complete evaluation package.� The Commission found

that the record lacked statements from appropriate agency officials

explaining what documents should be included in this package. Absent this

information, the Commission vacated the agency's final decision, and

remanded the case to the agency. The Commission ordered the agency

to supplement the record with relevant information regarding what

specific documents constituted a �complete evaluation package,� and to

include �a statement from an appropriate agency official explaining what

documents are included and what documents are excluded from �complete

evaluation packages'.� The Commission also ordered the agency to issue

a final decision upon completion of its supplemental investigation.

Nash v. U.S. Postal Service, EEOC Appeal No. 01A23440 (December 4, 2002).

Pursuant to the Commission's order, the agency issued a final decision

on May 2, 2003, which concluded that it complied with the Commission's

Order, as well as with the settlement agreement. Specifically, the

agency indicated that it procured an affidavit from the agency official

who conducted the desk audit, describing the audit process, as instructed

by the Commission. Additionally, the agency determined that this same

official supplied copies of all documents from the audits, to include

an internal September 10, 2001 memorandum, which provided a detailed

explanation of the audit findings and conclusions. The agency admitted

that it should have provided complainant with all of the documents

gathered during the desk audit, but argues that this was a technical

breach, which did not effect the outcome of the settlement agreement,

and that complainant now had all copies of the remaining documents and

a full explanation of the audit process and conclusions.

On appeal, complainant argues that the audit package submitted to her

by the agency on September 28, 2001, clearly did not constitute the

entire audit package. Furthermore, complainant argues that even if the

supplemental submission to her had been timely, it is still insufficient

to definitively show exactly what constitutes an EAS-24 position, as

opposed to an EAS-25 position. Complainant also argues that the agency's

reduction of the other three �MSSC� EAS-25 positions to EAS-24 positions

based on the audit results has no bearing on the agency's obligation to

provide complainant with a complete audit package, and that its failure

to do so constitutes a material breach of the settlement agreement.

Complainant requests reinstatement of her complaint.

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).

The settlement agreement obligated the agency to conduct a desk audit

of complainant's EAS-24 �MSSC� position, as well as three other EAS-25

�MSSC� positions, and to provide complainant with the �complete evaluation

packages� of these audits. The agency admits that its initial submission

to complainant, in September 2001, did not include all of the documents

obtained during the audits, and that, in particular, complainant

did not receive a copy of an internal September 10, 2001 memorandum

which summarized and analyzed the audit results, and concluded that

complainant's position was properly graded, but the three other �MSSC�

positions were over-evaluated, and must be reduced to the EAS-24 level.

However, complainant admits that pursuant to the Commission's order, the

agency provided her with all of these materials, as well as a statement

of explanation from the agency official conducting the audit.

In light of the above, we find that the agency cured any breach when

it provided complainant with the additional materials originally omitted

from the audit package, as well as a statement from the auditing official

explaining the audit process. Furthermore, although complainant continues

to challenge the adequacy of the audit procedure, demanding a detailed

explanation as to the difference between an EAS-24 and EAS-25 position,

we note that in its September 10, 2001 memorandum, the agency justifies

its demotion of the three EAS-25 positions to EAS-24 positions as being

due to the �loss of Human Resources and Disbursement� responsibilities.

Moreover, we find that the settlement agreement requires the parties to

abide by the outcome of the desk audits. Therefore, absent evidence

of bad faith or gross inadequacy, neither of which we find in the record

before us, we find that complainant's challenge here is tantamount to an

impermissible challenge of the audit results. Although it is clear that

complainant did not obtain the benefit she hoped to receive from the

settlement agreement, i.e., an up-grade to her position with possible

retroactive pay back to a certain date, we find that the settlement

agreement provided her with no guarantees in this regard.

Therefore, for the reasons set forth above, we agree with the agency

that its breach was technical in nature, and we conclude that the agency

subsequently cured this breach, and thereby substantially complied with

the terms of the settlement agreement. Accordingly, we AFFIRM the

agency's final decision finding no breach of the settlement agreement.

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 (S0900)

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 (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

December 8, 2003

__________________

Date