0120181672
09-11-2018
Anette B,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Anette B,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120181672
Agency Nos. DON0300681003 and DON0467895005 (DON0400027001)
DECISION
On April 23, 2018, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated April 5, 2018, finding that it complied with the terms of the settlement agreement into which the parties entered.2 See 29 C.F.R. �� 1614.402; .405, .504(b).
BACKGROUND
On February 4, 2004, Complainant and the Agency entered into a settlement agreement to resolve two formal complaints. The settlement agreement provided, in pertinent part, that:
4. [T]he Agency agrees to the following . . .
e. Provide Performance Awards for the years 2002, 2003 and 2004. The amounts of these awards will be $2500.00 each, $7500.00 total. As with the entirety of this agreement, payment of these awards is conditioned upon approval of Complainant's FECA claim and the approval of Complainant's application for Disability Retirement by OPM or the voluntary resignation of Complainant from this agency before these claims are final; . . .
g. Pay Complainant's attorney's fees in an amount not to exceed $10,000.00. Complainant's counsel will submit administratively acceptable evidence of fees. As with the entirety of this agreement, payment of these awards is conditioned upon approval of Complainant's FECA claim and the approval of Complainant's application for Disability Retirement by OPM or the voluntary resignation of Complainant from this agency before these claims are final. . . .
6. COMPLIANCE PROCEDURE The Complainant understands and agrees that any claimed violation, breach or failure to perform any of the commitments described in this agreement shall be processed in accordance with the EEOC regulations at 29 C.F.R. 1614.505, which are incorporated by reference into this agreement. . . .
b. Complainant understands and agrees that she shall give written notice of any claimed violation, breach, or failure to perform by the Agency of any of the promises described in this Agreement to the EEO Counselor, within 30 calendar days of the date the Complainant knew or should have known of the alleged noncompliance.
By letter to the Agency dated March 28, 2018, 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 reissue an expired check in the amount of $7,500.00 for her 2002 to 2004 performance awards or to pay accrued attorney's fees.
In its final decision dated April 5, 2018, the Agency found Complainant's allegation of breach untimely. The Agency cited provision (6)(b) of the settlement agreement and stated that it informed Complainant's Attorney that it would accept "administratively acceptable" evidence to substantiate attorney's fees, but never received such evidence. The record contains a letter dated April 28, 2017, in which the Agency informed Complainant's attorney-of-record (A1) that it never received "administratively acceptable" evidence so it could not pay attorney's fees. In the letter, the Agency stated that it requested fee information on multiple occasions, and, in August 2016, it received summary totals and a copy of a cancelled check for $2,500.00 from Complainant as evidence. The Agency stated that it was unable to determine if the fees charged fell within the scope of the settlement agreement. Further, the Agency informed A1 that the funds originally obligated under the agreement for attorney's fees had expired and were no longer available more than a decade later.
On appeal, Complainant stated that she did not cash the check for $7,500.003 because it read "final payment" and the Agency still owed her for attorney's fees. Complainant stated that she wanted the Agency to correct the error and the check expired before they did so. Further, Complainant stated that her attorney thought he submitted "administratively acceptable evidence" of fees and if he did not the Agency should have informed him of such. Complainant stated, "my attorney had been trying to get this resolved for years and we believed the Agency was going to comply." Complainant asks that the Agency reissue the check for $7,500.00 and consider the evidence of attorney's fees she submitted and remit payment. Complainant stated that after the Agency letter of April 5, 2018, "she became fully aware that the Agency would not honor the remainder of the [February 2004] Settlement Agreement." Complainant stated that she no longer has legal representation.
Complainant provided a cancelled check, dated August 12, 2003, to a law office for $2,500.00. She also provided a one page Client Fees Listing, dated August 11, 2016, totaling $10,032.50 for 49.90 billed hours by an attorney. In a letter to the Agency, dated August 12, 2016, A1 stated that Complainant paid $2,500.00 to her prior attorney and $9,500.00 to his firm, which left an outstanding balance of $500. A1 asked that the Agency accept his representation of fees and remit $12,500.00 for attorney's fees to Complainant.
ANALYSIS & 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).
We find Complainant's instant breach claim untimely. EEOC Regulation 29 C.F.R. � 1614.504(a) requires that claims of breach must be raised within thirty days of when a complainant knew or should have known of the alleged noncompliance. Here, in February 2004, the parties entered into a settlement agreement that awarded Complainant $7,500.00 for three years of performance benefits and attorney's fees up to $10,000.00 as shown by "administratively acceptable evidence." Section (6) of the settlement agreement provided that compliance with the agreement would be processed in accordance with EEOC regulations, and specifically stated that Complainant should claim violations or breach within 30 calendar days of the date Complainant knew or should have known of the alleged noncompliance.
The Agency issued Complainant a check for $7,500.00 in September 2007, which she did not cash stating that the Agency owed her additional money for attorney's fees. The Voucher for the check stated that it was for three years of performance awards as agreed and that it was final payment in that regard. The Agency did not pay attorney's fees. The Agency stated that Complainant and her attorney did not submit "administratively acceptable" evidence to show that the charges were covered by the settlement agreement. On appeal, Complainant provided an August 2003 cancelled check payable to a law firm and a one page general listing of hours and fees totaling $10,032.50 for another firm. The Attorney, A1, asked that the Agency accept his statement of the applicable fees. Complainant stated that her attorney tried for years to resolve the matter with the Agency and they thought the Agency would comply.
By letter to the Agency dated March 28, 2018, Complainant alleged that the Agency was in breach for failing to reissue the expired check and not paying attorney's fees. In its April 5 final decision, the Agency found Complainant's allegation of breach untimely. We agree, more than a decade later is untimely and is inconsistent with the settlement agreement and EEOC Regulations as to breach claims.
CONCLUSION
We AFFIRM the Agency's final decision finding Complainant's breach claim untimely.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 11, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 We note, between June 26, 2006 and November 24, 2014, Complainant filed four other appeals with this Commission alleging various Agency non-compliance with the settlement agreement at issue herein.
3 The record contains a United States Treasury check payable to Complainant in the amount of $7,500.00, dated September 25, 2007. The check reads "void after one year." The record also contains a Public Voucher for Purchases and Services Other than Personal requesting the check, stating that it was for "Performance Awards damages settlement re: [Complainant]" for fiscal year 2002 through fiscal year 2004 and that it was "final payment."
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