01A33724_r
12-08-2003
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