0120114119
06-01-2012
Anita Trujillo, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
Anita Trujillo,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120114119
Agency Nos. HS-01-ICE-000141
HS-02-ICE-000215
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated August 5, 2011, finding that it was in compliance with the terms of a February 19, 2008 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
The February 19, 2008 settlement agreement provided, in pertinent part, that:
4(b). The Agency agrees to retroactively promote the Complainant to the grade of GS-13, effective January 3, 2000. In retroactively promoting Complainant to the grade of GS-13, the Agency agrees to provide Back Pay pursuant to the Back Pay Act, 5 U.S.C. 5596, as well as all other benefits associated with a retroactive promotion. In computing the Back Pay, interest is to be included. An appropriate amount required by the law will be withheld for payment of federal taxes such as income tax, Medicare tax, and FICA, etc.1
By letter to the Agency dated January 26, 2009, Complainant, through her attorney, alleged breach of provision 4(b).2 Specifically, Complainant alleged that the Agency did not provide Thrift Savings Plan (TSP) matching funds for her retirement. Complainant alleged that the Agency never provided her an explanation as to "why the Agency in pay period 20 (in 2008) added...$6,689.98 to her TSP account as part of the settlement agreement, but two pay periods later, reduce[d] the amount...by [a] figure of $2,036.95..."
On August 27, 2009, the Agency issued a final decision, finding no breach. Complainant appealed the Agency's decision to the Commission. The Commission remanded this matter for a supplemental investigation to determine whether the Agency breached provision 4(b), or whether (as asserted by Complainant on appeal) the Agency's initial compliance with this provision was undercut by subsequent Agency actions. Trujillo v. Department of Homeland Security, EEOC Appeal No. 0120100073 (April 29, 2011).
On August 5, 2011, pursuant to a supplemental investigation, the Agency issued the instant final decision, again finding no breach of provision 4(b). The Agency determined that Complainant did not provide any evidence support her allegation that the Agency breached provision 4(b) to provide TSP matching funds to her retirement account and incorrectly removed $2,036.95 from the account. The Agency determined that during pay period 20 for 2008, it processed a TSP refund in the amount of $2,036.95 which was deposited into Complainant's account because her contributions exceeded the Internal Revenue Service (IRS) limit for that year. The Agency initially determined $6,689.98 was the correct matching fund amount. However, upon learning of the IRS contribution limit, the Agency reduced that figure by $2,036.95 to a total of $4,653.03.
In support of its assertions, the Agency submitted a copy of the Payroll Supervisor (PS)'s memorandum explaining how Complainant's TSP contributions were determined during the back pay period.
The record contains a copy of PS's memorandum dated June 23, 2011. Therein, PS stated that during the relevant time, Complainant received a total of $91,281.88 in gross back pay including $26,655.72 in interest. PS further stated that this amount was reduced by $18,134.03 for statutory deductions and $6,689.98 for TSP, which resulted in a net pay of $66,457,87. PS stated that during pay period 20 of 2008, a TSP refund in the amount of $2,036.95 was processed and deposited in Complainant's account due to the contributions exceeding the IRS limit for that year. PS stated instead of the $6,689.98 reflected in the back pay calculations as being deposited to her TSP account, Complainant actually received $4,653.03.
CONTENTIONS ON APPEAL
On appeal, Complainant through her attorney, argues "assuming, arguendo, the Agency did not understand IRS regulations, it could easily have retroactively paid the contribution in prior year computations or in the following year. It did neither and for more than three years as the Complainant, her attorney, and the Agency's attorney were never able to obtain a coherent response to repeated inquiries. However, the Complainant asserts that the Agency's explanation is flawed because it simply ignores the 5% matching contribution that must be put into TSP by the Agency to match the employee's contribution [emphasis in its original]." Complainant argues that she is entitled to additional contribution into her TSP with interest from the date it took the money out during pay period 20 of 2008.
Further, Complainant requests compensatory damages and attorney's fees based on the Agency's refusal to provide an explanation "until ordered by the Commission, has caused the Complainant a great deal of angst, frustration and disgust."
ANALYSIS AND FINDINGS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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).
In the instant case, we find that the Agency complied with provision 4(b) of the settlement agreement. Provision 4(b) provides for an affirmative Agency obligation to retroactively promote Complainant to the GS-13 level effective January 3, 2000; and pay her back pay and any other benefits associated with a retroactive promotion, including interest. The record contains documentation reflecting Agency compliance with Provision 4(b).
The Agency's finding of no breach of provision 4(b) of the February 19, 2008 settlement agreement was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 (S0610)
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 (Z0610)
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
June 1, 2012
__________________
Date
1 The settlement agreement also provides for the Agency to pay Complainant $50,000 in compensatory damages; pay Complainant's attorney $50,000 in attorney's fees and costs; and send a letter from a named Special Agent to the United States Attorney for the Southern District of Houston stating that nothing in Complainant's personnel record would disqualify or preclude her from being assigned criminal cases. These provisions are not at issue in the instant case.
2 The record does not contain a copy of Complainant's January 26, 2009 letter alleging breach of provision 4(b) of the settlement agreement. The Commission can nevertheless discern the essence of the breach claim, from the context of various statements made by Complainant that are contained in the record.
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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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