01A24088
07-02-2003
Gloria D. McCombs, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gloria D. McCombs v. United States Postal Service
01A24088
July 2, 2003
.
Gloria D. McCombs,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A24088
Agency No. 1-A-116-0013-02
DECISION
Complainant timely appealed to this Commission from the agency's July
10, 2002 final decision, finding no breach of a March 7, 2002 settlement
agreement.<1> The settlement agreement provided:
(1) The parties agree that [complainant] shall receive a favorable
merit rating of �met objectives' for FY01 compensating her at the
rate of 3.7% of current basic salary retroactive to December 29, 2001.
Said compensation shall be paid out before April 1, 2002.
(2) The parties agree that [complainant's] EVA<2> will be adjusted to
reflect pro-rated credit to and pay out from her reserve account based on
the LWOP at the rate of 1.19% that the NY I.S.C. exempt employees received
for FY01. Said compensation shall be paid on or before April 1, 2002.
By letter to the agency dated April 5, 2002, complainant alleged breach
of the settlement agreement and requested specific performance of its
terms. In a June 3, 2002 letter, complainant clarified her allegation.
She asserts that the agency violated provision (1) of the settlement by
pro-rating her merit award as opposed to a �full� award, and breached
provision (2) by failing to complete the required adjustments to her EVA.
In its final decision, the agency found that complainant was not
entitled to a �full� award. Under merit award procedures, according to
the agency, the award amount must be pro-rated or reduced based on the
amount of LWOP the employee accrued. With regard to provision (2),
the agency admitted that it failed to meet its April 1, 2002 deadline.
It explains that the EVA, unlike the merit award, cannot be processed
at the local office. The agency asserts that the plant manager informed
complainant that her EVA would be delayed as soon as he learned it could
not be processed locally. Nonetheless, the agency processed complainant's
EVA in March 2002, and determined complainant was due $84.53.
Any settlement agreement knowingly and voluntarily agreed to by the
parties, reached at any stage of the complaint process, is binding on both
parties. See 29 C.F.R. � 1614.504(a). 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 parties' intent as
expressed in the contract, not some unexpressed intention, 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 generally has 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 instant settlement agreement does not specify how complainant's merit
award will be processed. It does not specifically require the agency to
provide complainant with a �full� award irrespective of her LWOP. In such
circumstance, the agency must process the award payment in the customary
manner, pursuant to its normal course of business. The agency provided
a copy of its internal regulations for the processing of merit awards.
These internal policies outline how award amounts must be pro-rated
by one's LWOP. Accordingly, the agency's pro-rated calculation for
complainant's merit pay award was proper.
With regard to provision (2), the agency provided a copy of its EVA
calculations, indicating that complainant is entitled to $84.53 under
the settlement agreement. Complainant has provided no evidence to prove
that the agency's calculations were incorrect. Further, complainant
does not contend on appeal that the agency failed to pay complainant
with the calculated EVA amount. Therefore, the Commission finds no
breach of provision (2) of the settlement agreement.
CONCLUSION
Accordingly, the agency's final decision is AFFIRMED.
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
July 2, 2003
__________________
Date
1In the same correspondence, complainant also attempts to appeal
the agency's November 29, 2001 notice of acceptance for Agency
No. 1A-116-0052-98. This appeal is premature, and will not be considered.
Complainant may not appeal to this Commission until she has received a
final decision concerning all of the claims in her complaint. See 29
C.F.R. � 1614.107(b); Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), ch. 5 - p. 1 (Nov. 9, 1999).
2The agency's EVA or �pay for performance� program provided monetary
bonuses to members of a team or work group when the team or workgroup
met its production goals.