0120132791
10-16-2014
Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Commissary Agency), Agency.
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120132791
Agency No. DECA001822009
DECISION
Complainant filed a timely appeal with this Commission regarding the terms of a May 23, 2012 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
During the period at issue, Complainant worked as a Commissary Management Specialist at the Agency's West Region facility in Fort Lee, Virginia.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On May 23, 2012, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement contained, in pertinent part, the following provisions:
3. By signing this Agreement, the Agency hereby agrees:
a. To pay Complainant the lump sum of $150,000 to be paid within forty-five (45) days of the date of the execution of this Agreement;
b. To re-credit Complainant four hundred (400) hours of annual leave;
c. To comply with the Commission's December 9, 2011 judgment, including payment of back pay at the GS-14 level beginning October 31, 2004 through the date of this agreement, interest on back pay, performance award adjustment for 2006 amounting to $3809, adjustment of life insurance to reflect adjusted final salary as determined by OPM [Office of Personnel Management], communication of salary adjustment to OPM for annuity purposes and adjustment of annual leave balance cashed in at the time of Complainant's retirement and such reasonable attorney's fees as the Commission may award;
d. To initiate its obligations under this agreement within thirty (30) days and to update Complainant on the progress of her back pay and benefits adjustments within sixty (60) days of the date of this agreement.
By letter to the Agency dated June 10, 2013, Complainant alleged breach. Specifically, Complainant alleged that the Agency did not properly calculate the amount of back pay due her, communicate to OPM adjustments to her life insurance policy or final salary, and provided Complainant with 400 hours of annual leave at a lower, and incorrect, rate of pay. Complainant contends that the Agency has provided inadequate explanations as to how it calculated the amounts paid.
The record does not contain a response from the Agency or a final decision. In fact, the record does not include any evidence of compliance, whether in part or in full, by the Agency with the Agreement. At most, Complainant attaches as an exhibit to her appeal, a spreadsheet purportedly created by the Agency to demonstrate its calculations of the amount of back pay due under the Agreement. There is no evidence concerning any other provision in the Agreement.
Complainant, on appeal, disputes the calculations used by the Agency. For instance, Complainant explains that during the period in which she was to receive back pay, the Agency changed pay systems, switching between the General Schedule (GS) pay scale and the National Security Personnel System (NSPS). Complainant argues that the Agency improperly calculated the conversion of her status from GS to NSPS, and then back to GS, negatively affecting every aspect of the amount due to her under the Agreement.
The instant appeal followed.
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, the record in this case contains insufficient evidence for us to determine whether a breach of the instant settlement agreement has occurred. Although Complainant argues that the Agency improperly calculated the amount she was entitled to receive and improperly calculated her GS or NSPS status, there is no evidence the Agency actually paid Complainant or her attorney, nor is there any evidence demonstrating the Agency's determinations as to Complainant's proper status under either pay system. Given this lack of evidence, we are unable to ascertain whether the Agency complied with the settlement agreement. Accordingly, this matter is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to take the following action:
The Agency shall supplement the record with evidence clearly showing that it has complied with the May 23, 2012 settlement agreement. The supplementation of the record shall include any documentation, such as a detailed demonstration of its compliance with its obligations under the settlement agreement. In doing so, the Agency explanation shall include, but is not limited to, documentary evidence, explanations how the Agency calculated (i) Complainant's back pay, (ii) adjustments to Complainant's life insurance and final salary, (iii) adjustment to Complainant's annual leave balance, and (iv) Complainant's performance award adjustment, and documentation of communications to OPM of all necessary elements of the Agreement. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall complete the supplementation of the record and issue a new decision concerning its compliance with the May 23, 2012 settlement agreement.
A copy of the Agency's new decision must be sent to the Compliance Officer as referenced herein.
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 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 (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 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 (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
October 16, 2014
__________________
Date
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0120132791
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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