0120082672
01-26-2009
Peggy S. Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Capital Metro), Agency.
Peggy S. Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Capital Metro),
Agency.
Appeal No. 0120082672
Agency No. 1K-211-0028-05
DECISION
On May 29, 2008, complainant filed an appeal with this Commission after
the agency failed to respond to complainant's March 11, 2008 claim that
the agency failed to comply with the terms of the September 13, 2006
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.
The settlement agreement provided, in pertinent part, that:
(8) The Agency agrees to enhance the Agency's retirement contribution
for the Complainant for each of the three preceding years by retroactively
promoting the Complainant from an EAS-17 as follows: beginning on January
24, 2004 the contribution will be for an annual salary of $68,151.00 as
reflecting her promotion to an EAS-24; beginning on January 22, 2005 the
contribution will be for an annual salary of $76,725.00 as reflecting her
promotion to an EAS-24; and beginning on January 21, 2006 the contribution
will be for an annual salary of $86,316.00, as reflecting her promotion
to an EAS-24. Complainant agrees to waive receipt of any increased back
pay from the Agency. The Agency agrees to deposit into the Civil Service
Retirement and Disability Fund all amounts of increased civil service
retirement deductions from pay and agency contributions required under
5 U.S.C. section 8334 based upon the personnel actions described in
the preceding sentences of this paragraph. The agency also agrees to
prepare Individual Retirement Record forms for submission to the Office
of Personnel Management reflecting the increased pay levels resulting
from the preceding sentences of this paragraph.
(9) The Agency will request the Office of Personnel Management to
prepare an estimated annuity calculation for the Complainant by no later
than October 13, 2006 of the retirement benefit amount she will receive
as a result of the provisions in paragraph 8 above.
By letter to the agency dated March 11, 2008, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that although she should have a "High-3 Average Salary1" amount
of $77,366.00, she received a "Your Federal Retirements Benefits"
brochure from the Office of Personnel Management (OPM) indicating that
her "High-3 Average Salary" is only $70,717.00.
On appeal, complainant further requests that the agency enhance its
retirement contributions so that complainant's retirement benefit is
based upon a "High-3 Average Salary" amount of $77,366.00. The agency
contends that complainant's claim should be dismissed because the
Commission previously affirmed the agency's February 15, 2007 decision
finding no breach of the settlement agreement in Johnson v. United
States Postal Service, EEOC Appeal No. 0120071764 (July 26, 2007),
req. for recons. den. EEOC Request No. 0520070869 (September 21, 2007).
Upon review of this matter, we determine that complainant is raising the
same matter addressed in our previous decision. Complainant's latest
breach claim is that the OPM's "High-3 Average Salary" does not reflect
the enhanced retirement contributions promised in the agreement. However,
in our previous decision, we found that the agency had complied with
the terms of the agreement. Specifically, the Commission in EEOC Appeal
No. 0120071764 found that "[a] review of the record indicates that the
agency has complied with [provision (8) of the settlement agreement]
by retroactively promoting complainant to an EAS-24 at the salary
levels indicated for the limited purpose of increasing complainant's
retirement contributions as stated in the provision." In addition, in EEOC
Appeal 0120071764, the Commission further found that the agency was in
compliance with provision (9) of the settlement agreement. Specifically,
the Commission stated that "[t]o the extent that complainant is here
asserting breach of provision (9) because the agency's annuity estimate
differs from that provided directly to her by OPM, we again find no
agency breach...the agreement only requires that the agency request (and
deliver) the annuity estimate, not that it certify its accuracy." Thus,
we dismiss complainant's instant breach claim for stating the same claim
previously decided by the Commission. 29 C.F.R. �1614.107(a)(1).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 (S0408)
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 (Z1008)
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
__January 26, 2009________________
Date
1 According to OPM, the monthly retirement benefit is based in part
on the highest average salary employees receive during any three year
period while employed. However, the relevant three-year period does
not always occur in the last three years of employment.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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