0120120898
04-20-2012
Kay L. Walker, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Kay L. Walker,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120120898
Agency No. 200H04602009101296
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated November 4, 2011, finding that it was in compliance with the terms of the 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.
BACKGROUND
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On March 6, 2009, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1) Effective March 15, 2009, the next pay period after signing this agreement, the Agency will provide $4,800.00 salary increase to the complainant. Complainant's salary will change from Nurse II step 12, $93,742.00 to Nurse II step 12, $98,542.00.
(2) This change in salary will be permanent.
By letter to the Agency dated July 23, 2009, 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 the Agency failed to provide Complainant with the salary increase specified in the settlement agreement. Complainant further indicated that the Agency provided her with a retention bonus which adversely affected her retirement annuity. Complainant argued that she should not have been given a retention bonus but a salary increase as stated in the settlement agreement.
The Agency issued its initial Final Decision on September 23, 2009, stating that it could not carry out the settlement agreement as written. The Agency noted that Complainant was at the top of her grade level; therefore, to provide Complainant with the additional amount of salary, it awarded her a retention bonus to supplement her compensation. Further, this compensation would be added to Complainant's salary each year on a permanent basis. As such, the Agency did not find that the settlement agreement was breached.
Complainant appealed that decision. In EEOC Appeal No. 0120100199, the Commission found that the Agency breached the settlement agreement for it did not provide the salary bonus to Complainant as agreed to in the terms of the settlement agreement. Walker v. Dep't of Veteran's Aff., EEOC Appeal No. 0120100199 (Apr. 22, 2010). However, the decision noted that, as remedy, Complainant had the option of:
1. Permanently accepting the retention bonus on an annual basis as a supplement to her yearly salary; or
2. Resume processing of her the EEO matter that was resolved by the settlement agreement.
The Commission noted that if Complainant sought reinstatement of her EEO matter, she must return to the Agency all the retention bonus money she received.
The Agency filed a request for reconsideration on the Commission's decision. The Agency asserted that it did not act in bad faith with it provided Complainant with the retention bonus in lieu of the salary increase pursuant to the settlement agreement. As such, the Agency believed that the previous decision erroneously held that the Agency breached the settlement agreement. Complainant did not file a separate request for reconsideration. The Commission denied the Agency's request and upheld the previous decision's finding of breach. Walker v. Dep't of Veterans Aff., EEOC Request No. 0520100401 (Jul. 14, 2010).
In response to the Commission's decision, on August 27, 2010, the Agency requested that Complainant provide a form with her election of either the retention bonus or the processing of her EEO matter. On September 2, 2010, Complainant returned the form indicating her desire to reinstate the EEO matter. The election form clearly indicated that if Complainant chose to resume processing of the EEO complaint, she would have to return any retention bonus received as ordered by the Commission.
The Agency asked its Fiscal Service to provide Complainant with the amount of funds she would be required to reimburse the Agency in order for the parties to return to status quo and for settlement agreement to be set aside. On April 23, 2011, the Agency's accounting services determined that Complainant has been paid $7,643.62 for the pay periods between July 18, 2009 and November 6, 2010. On May 3, 2011, Complainant asked for a waiver. The Agency's facility director recommended that the waiver not be granted on September 13, 2011.
In its November 4, 2011 FAD, the Agency concluded by asking for a waiver from the repayment of the retention bonus, Complainant has elected not to return the parties to the status quo as required prior to the reinstatement of her EEO complaint. Accordingly, based on the Commission's decisions and her failure to return the retention bonus, the Agency determined that it will not reinstate Complainant's EEO complaint and the terms of the agreement stand with Complainant receiving a permanent retention bonus. The Agency rescinded the attempts to collect the retention bonus she has already received and resumed Complainant's retention bonus. The Agency provided Complainant with appeal rights to the Commission regarding its determination.
Complainant appealed asserting that the retention bonus should not have been considered the salary increase as required by the settlement agreement. Complainant indicated that the retention bonus was requested by another individual not involved in the case at hand. Therefore, she has never been given the salary increase required by the settlement agreement and is not required to pay any money back to the Agency to have her complaint reinstated. The Agency responded to Complainant appeal. The Agency indicated that Complainant is trying to re-litigate issues previously decided by the Commission in Walker v.Dep't of Veterans Aff., EEOC Appeal No. 0120100199, req. for reconsideration denied, EEOC Request No. 0520100401. Accordingly, the Agency requests that the Commission affirm its decision not to reinstate Complainant's EEO complaint.
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, the Commission's previous decision determined that the Agency breached the settlement agreement. The issue at hand is Complainant's election between:
1. Permanently accepting the retention bonus on an annual basis as a supplement to her yearly salary; or
2. Resume processing of her the EEO matter that was resolved by the settlement agreement once she returned all the retention bonus money she received to the Agency.
These were the options as ordered by the Commission in EEOC Appeal No. 0120100199. Complainant was clearly provided with this information in the Commission's decision. Further, if Complainant did not agree with the Commission's orders, she could have requested consideration of the Commission's decision. The Commission's decision on the matter of the election options for Complainant was left unchallenged by Complainant and became final.
The record shows that Complainant sought ways to avoid returning retention bonus to the Agency. Further, on appeal, Complainant continues to refuse to pay the retention bonus. Based on Complainant's actions, we find that the Agency correctly determined that Complainant will not return the parties to the status quo prior to the settlement agreement. Therefore, the Commission finds that it is inappropriate to reinstate the EEO complaint. Accordingly, the only option for Complainant would be to permanently accept the retention bonus on an annual basis.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's November 4, 2011 FAD.
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), 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 (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
April 20, 2012
__________________
Date
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0120120898
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120898