01A31748_r
07-09-2003
Sollie Brooks, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sollie Brooks v. United States Postal Service
01A31748
July 9, 2003
.
Sollie Brooks,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31748
Agency No. 1-J-612-1036-95
DECISION
Complainant filed a timely appeal with this Commission from an October 23,
2002 agency decision finding that it was in compliance with the terms of
the November 14, 1995 settlement agreement into which the parties entered.
The settlement agreement provides, in pertinent part, that:
(8) The United States Postal Service agrees to restore Complainant's
salary at level EAS-22 ($55,647 yearly gross income with COLA) effective
the Pay Period following the signing date of this Agreement; and
(9) The Complainant agrees to submit application [sic] for all posted
Manager, Distribution Operations (EAS-22) vacancies within the facilities
of the Chicago District, including the Chicago P&D (MPO), AMC O'Hare,
and Irvin Park, provided the U.S. Postal Service sends Complainant the
vacancy announcements.
In a December 19, 2000 letter to the agency, complainant alleged
that the agency had breached the settlement agreement. Specifically,
complainant alleged that the agency failed to provide her with annual
COLA payments as provided for in the agreement, that her pay of $55,647
was not adjusted since November 1995, and that her EVA pay benefit was
underpaid since November 1995. By letter dated March 1, 2001, complainant
alleged that she had not received any step increases and that her EVA
bonus was calculated at the level 16 rate and not at the level 22 rate.
In its March 13, 2001 decision, the agency found no breach. Specifically,
the agency determined that the settlement agreement only provided
complainant with a frozen, "saved salary," not with pay or step increases
and that the agency did not agree to EVA payouts. Further, the agency
noted that COLA was terminated for all EAS employees in 1996, through
national negotiations, which governed the agency's actions in this matter.
Regarding paragraph (9) of the settlement agreement, the agency stated
that the parties agreed only that complainant would submit applications
for vacancies that the agency provided. Complainant appealed the agency's
March 13, 2001 decision.
On September 25, 2002, the Commission issued a decision on complainant's
appeal in EEOC Appeal No. 01A13189. The Commission vacated the
agency decision finding no breach and remanded the matter to the
agency because it was unable to determine from the record whether a
settlement breach had occurred. The Commission noted in its decision
that the record contained two Notifications of Personnel Action (NOPA)
dated November 11, 1995. The official personnel file copy of the NOPA
submitted by the agency designated an �S-saved rate" in element 68 as
the salary code applicable to complainant pursuant to the terms of the
settlement agreement. However, the employee copy of the NOPA submitted
by complainant designated "special exception" as the applicable salary
code in element 68. The two NOPAs were otherwise identical in content.
Because the Commission could not determine the significance, if any,
of the salary code being identified as a "special exception," on the
employee copy and as a �saved rate� on the official personnel file copy,
the agency's decision was vacated.
On remand, the agency was ordered to conduct a supplemental investigation
to determine whether it had breached the settlement agreement and to issue
a new agency decision. The agency was ordered to explicitly define the
terms "saved rate" and "special exception" that were contained in the
two NOPAs, to identify the difference between the two terms with respect
to the settlement agreement, and to include any relevant documentation
supporting its determination, along with a precise explanation of what
was reflected in those documents.
The agency subsequently issued a decision dated October 23, 2002 finding
no breach of the settlement agreement. The agency noted that there was
no difference in the terms �saved rate� and �special exception� and that
the two terms were used interchangeably.
On appeal, complainant asserts that her salary was frozen since 1995 and
that the agency had not provided her with any vacancy announcements.
In its response to complainant's appeal, the agency states that
complainant was working at a level 16 position and under the terms
of the settlement agreement, she was restored to a level 22 salary.
The agency noted that no employee obtains pay increases in such cases
and that there was no agreement regarding pay raises or EVA payouts.
The agency also stated that COLA ended for all EAS employees in 1996,
as a result of national negotiations with the National Association of
Postal Supervisors (NAPS). The agency further noted that the vacancy
announcement provision was negotiated as a way for complainant to receive
level 22 salary.
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 record contains the October 22, 2002 declaration of an agency Human
Resource Specialist. In the declaration, the Human Resource Specialist
stated that in the 1989 Human Resources Information System, Forms 50
Processing Handbook, the terms �saved rate� and �special exception�
are used interchangeably and that the terms have the same meaning.
The code �S� covers saved rate �(saved salary),� special exceptions and
re-employed annuitants.
The two NOPAs reveal that complainant's salary was restored to EAS-22
effective the pay period following November 14, 1995, at a base salary
of $55,647 and a COLA of $2,142. The record contains a March 13, 2001
letter from the Manager of EEO Dispute Resolution which explains that
complainant was under a special salary code as a saved rate and therefore
she was not entitled to any step increases. The letter also reflects
that the COLA was ended for all EAS employees in 1996, as a result of
national negotiations with NAPS. The letter indicates that the vacancy
announcement provision of the settlement agreement was negotiated as a
way for complainant to receive the level 22 salary. The record contains
excerpts from the agency's 1996 annual report which indicate that COLAs
and general increases were eliminated for almost 80,000 EAS employees.
The Commission finds that the agency is in compliance with paragraph
(8) of the settlement agreement. Although complainant asserts that her
salary was frozen, that she has not received any pay increases and that
her EVA payout was miscalculated, the settlement agreement clearly has
no provision requiring payment by the agency of any increases or for an
EVA payout. Regarding the COLA, the Commission finds that circumstances
changed regarding COLA applications. Complainant has made no showing
that the agency negotiated or executed the COLA provision or the agreement
itself in bad faith.
Regarding paragraph (9) of the settlement agreement, the Commission also
finds no breach. The plain meaning of the terms of paragraph (9) does not
obligate the agency to provide complainant with vacancy announcements.
Rather, the requirement was on complainant to apply for vacancies when
vacancy announcements were provided to her by the agency. If the agency
did not provide any vacancy announcements, complainant had no obligation
to submit an application.
Accordingly, the agency's finding no breach of the settlement agreement
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 9, 2003
__________________
Date