01A23508_r
09-30-2003
James F. Mathisen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service Agency.
James F. Mathisen v. United States Postal Service
01A23508
September 30, 2003
.
James F. Mathisen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
Agency.
Appeal No. 01A23508
Agency No. 4H-339-0018-98
DECISION
Complainant filed a timely appeal with this Commission from a final
decision of the agency dated April 19, 2002, finding that it was in
compliance with the terms of a February 7, 2000 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The February 7, 2000 settlement agreement provided, in pertinent part,
that:
Complainant will be given Level 5 Maintenance Support Clerk position with
seniority back to 1/16/98 and will be paid the difference between level 3
and level 5 for the same period. SDO's will be Saturday/Friday. Union
agrees not to entertain any grievance as a result of this settlement.
The employee originally awarded the position will remain in that position.
Employee will be entitled to any overtime, night differential and Sunday
premium pay during this same time frame. No retaliation will be taken
against the Complainant as a result of this settlement.
By letter to the agency dated August 8, 2000, complainant alleged that
the agency breached the agreement and requested that it specifically
implement the terms. Specifically, complainant claimed that five
months had passed since the February 7, 2000 agreement was executed
and that he had not yet received the payment identified in the above
referenced provision. Complainant claimed that after he spoke with his
supervisor, the appropriate paperwork was initiated; but that soon after,
complainant learned that an error had been made. When complainant went
to the personnel office to obtain more information, he was told that he
would be made a 5C on Schedule 1, dropping him from a level 5k on Schedule
2, and resulting in a $2,464 pay cut. Complainant claimed that when he
received his paycheck, he was instead made a 5C on Schedule C, resulting
in an even larger reduction in pay of $6,272. Complainant argued that
the reduction in pay violates the settlement agreement and is an act
of retaliation. Further, complainant requested that the agency pay him
the difference between level 3 and 5 as set forth in the settlement.
Complainant requested that the complaint be reinstated if the agency is
unwilling to implement the terms.
In its August 29, 2000 final decision, the agency found there was no
breach of the February 7, 2000 settlement agreement. On appeal, the
Commission vacated and remanded the agency's decision after finding the
record was unclear, confusing and incomplete. On remand, the agency was
specifically ordered to conduct an investigation concerning complainant's
claim of breach and supplement the record with evidence documenting what
pay level, schedule and salary complainant: (a) has received since the
execution of the settlement agreement; and (b) should be receiving in
accordance with the agreement's terms. Mathisen v. United States Postal
Service, EEOC Appeal No. 01A10358 (September 20, 2001).
Following the Commission's September 20, 2001 decision, the agency
supplemented the record with documentation reflecting its calculation of
payment made to complainant pursuant to the February 7, 2000 settlement
agreement.
The agency issued a new final decision on April 19, 2002, which is the
subject of the present appeal. Therein, the agency found that complainant
did not provide any persuasive evidence to support his assertion that
the agency failed to properly adjust his salary in violation of the
agreement. The agency determined that the record discloses that on March
6, 2000, complainant's pay was adjusted to reflect a promotion to Level
5/Step K with a base salary of $36,379, effective February 12, 2000.
The agency further determined that the salary adjustment was calculated
in accordance with a Memorandum of Understanding (MOU) dated October 8,
1999, between the agency and the union as a means to resolve a pay anomaly
involving the diminution in salary associated with promotions. The agency
indicated that because the MOU did not exist in January 1998, (the date
of complainant's retroactive promotion), the agency determined that his
salary had to be recalculated in accordance with the pay procedures in
place at the time as set forth in the Employee and Labor Relations Manual.
The agency then noted that from the point that it began correcting
complainant's pay problem on July 27, 2000, complainant's salary went
from Level 5/Step C at $32,043 to Level 5/Step F at $37,177, in a span
of four salary adjustments. The agency noted that by the last salary
adjustment, on August 5, 2000, complainant's salary had risen by almost
$3,000. Further, the agency stated although its actions in calculating
complainant's salary in accordance with the 1999 MOU was in error,
it was not a violation of the agreement to correct the error and pay
complainant correctly in accordance with the pay provisions in effect
at the time of his retroactive promotion. The agency further stated
that the back pay record indicates that complainant was paid $8,462.15
for the period January 18, 1998 through December 26, 2000. Finally,
the agency determined that complainant was properly paid all monies due
him in accordance with the pay procedures in effect at the time.
On appeal, complainant submits several copies of his pay stubs to
demonstrate that he was not paid what the agency claimed in its final
decision. Complainant notes that pay stub for �pay period 4" shows
that he was a level 3, earning $34,924 annually; that in �pay period 5"
he was at level 5 earning $36,379 annually; and that by �pay period 10"
he was at level 5, earning $36,733, due to a cost of living adjustment.
Complainant argues, however, that when the agency finally began to
implement the monetary portion of his settlement agreement, he began to
experience pay problems. Complainant notes that on �pay period 16,� his
salary dropped to $30,461 annually; that the agency's attempt to correct
the pay problem reflects a $32, 813 annual salary in �pay period 17.�
Complainant further notes that due to a contractual pay increase, in
pay period 20, he had an annual salary of $33,416 annually at level 5,
and that he remained at this pay rate until he transferred out of the
level 5 position and took a job at level 3. Complainant argues that he
never reached the $37,177 annual salary figure cited by the agency in
the instant final decision.
Complainant further asserts that the agency attempted to use its personnel
forms (PS Form 50) to demonstrate that he was paid at a higher rate.
Complainant argues that he suffered a wage loss of $1,200 during
the nine pay periods before his transfer to a different post office.
Complainant further argues that he is entitled to interest on the lost
wages. Furthermore, complainant argues he is entitled to 6 months of
interest on the $8,462.15 pay adjustment award he received from the
agency because of the delay and that the agency acted in bad faith.
In response, the agency restates the position it took in its final
decision. Further, the agency argues that complainant's appeal was
untimely.
Complainant thereafter responded that he provided the agency documentation
reflecting what he was actually paid. Complainant states "it is obvious
that the Agency is being selective in what they based their final decision
upon. In viewing the pay stubs I have provided, it is also obvious that
the Agency is in error and has failed to be objective in their decision
and have not checked their own financial records in this matter."
In its response to complainant's comments subsequent to appeal, the
agency argues that complainant distorted the facts concerning how it
calculated and applied the correct pay procedures to his situation.
The agency concludes that assuming complainant had provided information,
it does not change its position that his pay was adjusted in accordance
with the pay procedures in effect at that time, which would have been
reflected on his pay stubs. The agency states that at the time it
became apparent that complainant would have to be paid in accordance
with the pay procedures in effect at the time, complainant's pay had to
be recalculated. Further, the agency states that since the agreement
was not retroactive, complainant's pay had to be calculated using pay
procedures in effect at the time of his retroactive promotion to the
position of Maintenance Support Clerk, PS-05.
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 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 Commission will first address the agency's determination that
complainant's appeal is untimely. The records reveals that the thirtieth
day following complainant's receipt of the decision fell on Sunday, June
9, 2002, requiring the extension of the applicable filing period to the
next business day, or Monday, June 10, 2002. 29 C.F.R. � 1614.604(d).
Because complainant's appeal was postmarked June 10, 2002, the Commission
finds that complainant's appeal was timely filed.
Despite having previously vacated the agency's finding of no settlement
breach, the Commission nevertheless remains unable to determine whether
the agency complied with the terms of the February 7, 2000 settlement
agreement. The record contains a disparity of evidence regarding
complainant's receipt of pay pursuant to the settlement agreement.
Specifically, a review of complainant's statement on appeal showed
that his attempts to obtain clarification and information from the
agency concerning his PS Form 50's and pay rate addressed herein were
unsuccessful. In his appeal statement, complainant claimed that his
PS Form 50's and earning statements numbers do not match. A review of
complainant's FY2000 pay stubs for pay period Nos. 4, 5, 15, 16, 17, 20,
and 24, submitted by complainant on appeal indicates that complainant's
level 5 salary fluctuated at a variety of pay rates, ranging from $30,461
to $36,733. We note, moreover, that none of the pay stubs submitted
on appeal contain the $37,177 annual salary that the agency stated in
its final decision is the Level 5/Step F pay that was the fourth of four
salary adjustments that complainant purportedly received. The Commission
acknowledges that the record contains complainant's PS Forms 50 with
effective dates February 12, 2000 and July 29, 2000. The forms indicate
that complainant's salary was $36,379 (Level 5, Step K) and $37,177 (Level
5, Step F) respectively. We further note that on complainant's pay stubs,
there is no indication at what exact step level complainant was paid.
Given the disparities in the record as identified above, the Commission
determines that the agency has not supported its findings that it has
complied with the specific terms of the agreement by paying complainant
at the correct pay rate. Accordingly, the agency's decision that it did
not breach the agreement is again VACATED and the claim is REMANDED for
further processing in accordance with the Order below.
ORDER
Within thirty (30) calendar days after the date this decision becomes
final, the agency is ORDERED to take the following action:
(1) The agency is to provide evidence that delineates whether it has
implemented that portion of the settlement agreement that provides
that complainant will be given a Level 5 Maintenance Support Clerk
position with seniority back pay to January 16, 1998, and will be paid
the difference between level 3 and level 5 for the same period. The
evidence shall include any weekly pay statements that would support the
agency's assessment in its final decision that it commenced correcting
complainant's pay problem on July 27, 2000, resulting in complainant's
salary going from Level 5/Step C at $32,043 to Level 5/Step F at $37,177
in a span of four separate salary adjustments. Thereafter, the agency
shall issue a new final decision addressing whether or not the agreement
was breached.
A copy of the decision must be submitted to the Compliance Officer,
as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
September 30, 2003
__________________
Date