0120113923
11-19-2012
Christy Snyder, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
Christy Snyder,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120113923
Agency No. 2003-0657-2008-101906
DECISION
Complainant filed an appeal with this Commission after the Agency failed to issue a final decision (FAD) regarding whether the Agency was in compliance with the terms of the settlement agreement into which the parties entered.
BACKGROUND
At the time of events giving rise to the subject agreement, Complainant worked as a Registered Nurse at the Agency's John Cochran VA Medical Center facility in St. Louis, Missouri.
On November 4, 2010, Complainant and the Agency entered into a settlement agreement to resolve Complainant's pending complaints. The unnumbered settlement agreement provided, in pertinent part, that:
(1)1 The Agency will cancel the Complainant's one day suspension which was effective February 20, 2008. The Complainant will receive back pay, in accordance with the Back Pay Act, for wages and benefits she lost as a consequence of that suspension.
(2) The Agency will correct Complainant's pay records to show that Complainant was present for duty, and not absent without leave, on February 28, 2008. The Complainant will receive back pay, in accordance with the Back Pay Act, for wages and benefits she lost as a consequence of being reported as absent without leave on February 28, 2008.
(3) The Agency will pay the sum of $32,500.00 to Complainant as compensatory damages. This payment will be made in the form of a check payable to [Complainant and her attorney]. The Agency makes no representations to the Complainant or her attorney as to the federal, state or local tax consequences of this payment.
(4) The Agency will pay Complainant's Attorney, [attorney named], the sum of twenty three thousand dollars and 55 cents ($23,000.50) for attorney fees and costs.
. . .
(6) The Agency's St. Louis VA Medical Center will submit the paperwork, necessary for the payment of back pay, damages and attorney fees, as set forth above, to the Agency's fiscal service within thirty (30) calendar days of the date of this agreement.
(7) Complainant waives any right to compensatory damages, back pay, attorney fees and costs, and or/ consequential damages not specifically set forth in the preceding paragraphs of this agreement.
. . .
(13) The Complainant acknowledges that if she believes the Agency has not complied with the terms of this agreement, she may notify the Deputy Assistant Secretary for Resolution Management, in writing, within 30 days after the alleged breach, requesting that the terms of this Settlement Agreement be specifically implemented [or] her complaint reinstated.
Complainant was represented by an attorney at the time she signed the agreement. Around March 1, 2010, Complainant learned from her tax preparer that the Agency represented the settlement relief as "Non employee compensation" on an Internal Revenue Service Form 1099. According to Complainant, the representation caused her to owe "several thousand dollars" in "self-employment" taxes, although she was an employee and received the settlement relief as a direct result of her employment with the Agency.
By letter to the Agency dated April 27, 2011, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms by providing her a corrected Form 1099 showing that she received the relief as employee-related compensation. When the Agency did not respond, Complainant filed the instant appeal characterized as a petition for enforcement of the settlement agreement.
ANALYSIS
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, Complainant seeks implementation of the provision of the settlement agreement that requires the necessary paperwork to reflect her status as an employee and the actual nature of payment made to her as an employee for her lost back pay, wages, benefits and compensatory damages. The Agency responds that Complainant's "petition" should be dismissed as premature, because she failed to avail herself of the process by notifying the individual named in the settlement agreement or the Agency's Office of Resolution Management. Alternatively, the Agency argues that it has complied because the Agency paid the required amount. Next, the Agency argues that this is not a "breach" claim, but rather a tax withholding dispute, which should be brought before the Internal Revenue Service.
As an initial matter, we address the Agency's argument that Complainant's appeal should be dismissed because she failed to notify the "Deputy Assistant Secretary for Resolution Management" of her breach claim as provided for in the agreement. The record shows that by letter dated April 27, 2011, and addressed to the "EEO Manager" of the "Office of Resolution Management", Complainant notified the Agency in writing of her belief that it was not complying with the terms of the settlement agreement as a result of its reporting to the Internal Revenue Service. We find that, in so doing, Complainant was in substantial compliance with the terms of the settlement agreement for notifying the Agency of her breach claim. Moreover, we find that the Agency failed to properly respond to this breach claim as required by 29 C.F.R. � 1614.504.
Turning to Complainant's actual breach allegation, it is clear from the wording of the agreement that the nature of the payments provided to Complainant directly arose from her status as an employee of the Agency and were for lost wages, benefits and compensatory damages. The Agency's representation to the Internal Revenue Service of the money tendered as "non-employee compensation" is inconsistent with the terms of the agreement. While the agreement specifically provided that the Agency was making "no representations" as to the tax consequences of the payment, this did not permit the Agency to incorrectly report the nature of the payment to the Internal Revenue Service to Complainant's detriment. The agreement required that the Agency submit the necessary paperwork to effectuate the terms expressed in the agreement. To be consistent with the agreement, however, the paperwork to be provided should have accurately reflected payment to Complainant as an employee - and not a "non-employee." We find that the failure to provide an accurate statement was a breach of the agreement.
Our review of the record shows that the record is adequate to determine that the Agency failed to fully comply with the provisions that required necessary paperwork, and which clearly define the nature of relief as employee-related for the purpose of restoring Complainant's lost back pay, wages, benefits and compensatory damages. The Agency's representation made to concerning the payments provided should be corrected to appropriately reflect "Other income" and not "non-employee compensation."
CONCLUSION
Therefore, to the extent that the Agency's responses to this appeal may be viewed as a decision, the Commission REVERSES any decision finding compliance. We REMAND the matter to the Agency for the following requested relief.
ORDER
Within thirty (30) days of receipt of this order, the Agency shall:
(a) Provide Complainant and her attorney with an accurate and corrected Internal Revenue Service (IRS) Form 1099 that reflects the monies provided under the settlement agreement as "Other income" and not as non-employee compensation;
(b) Provide Complainant with any future verification needed by tax authorities as to the corrected designation of the monies provided under the settlement agreement; and
(c) Provide a copy of the corrected IRS Form 1099 to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (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 tends 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), at 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 (R0610)
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 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 (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
November 19, 2012
__________________
Date
1 We have numbered the provisions of the settlement agreement for ease of reference.
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0120113923
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113923