0120171665
09-20-2018
Bertie T.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bertie T.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120171665
Agency No. 20DR-0372-2014102970
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated March 7, 2017, finding that it was in compliance with the terms of the Addendum to 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 June 8, 2016, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
Within 60 days of the date of this Agreement, the Agency agrees to restore to Complainant's leave balance 400 hours of sick leave and annual leave.
After Complainant filed an October 5, 2016, breach of settlement claim and subsequent discussions between Complainant and the Agency, the Agency issued a Breach of the Settlement Agreement Determination, dated November 23, 2016. In that determination, the Agency indicated that they had in fact breached the settlement agreement. While a separate agency, Defense Finance and Accounting Service (DFAS), was responsible for processing Complainant's leave restoration, the Agency was responsible for initiating the processing of Complainant's leave restoration and had unreasonably delayed the initiation process. Consequently, the Agency directed the Veterans Benefits Administration (VBA) to comply with the Settlement Agreement and to submit the appropriate remedy ticket to the DFAS.
Prior and subsequent to the Agency's November 23, 2016, determination, DFAS had raised questions about the clarity of the Agreement. Thereafter, the parties executed an Addendum to the Settlement Agreement, dated December 9, 2016, to clarify the language of the original agreement for DFAS. The Addendum to the Settlement Agreement provided, in pertinent part, that:
Within 60 days of the date of this Addendum, the Agency agrees to restore to Complainant's leave balance 175.75 hours of annual leave and 54.54 hours of sick leave. Also, within 60 days of the date of this Addendum, the Agency agrees to convert 169.75 hours in accord with the back pay provisions governed by 5 C.F.R. SS 550.805-806. The Agency agrees to submit the paperwork for restored leave due to administrative error. The Complainant will have two (2) years to use the leave once it is restored.
By letter dated March 7, 2017, the Agency issued to Complainant a Breach of Settlement Agreement Compliance - Cease Monitoring Notice, with the right to appeal to this Commission. In its March 7, 2017, Cease Monitoring Notice decision, the Agency concluded that documentation was provided to show full restoration of the 175.75 hours of annual leave and that the VBA provided documentation of $6,766.23 in back-pay to Complainant.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency failed to properly restore 60 of the remaining 175.75 hours of annual leave to her, as required by the Addendum. Complainant also avers that the 60 hours will be subject to the annual leave cap and she would not have the two years provided in the Addendum to use the leave. Complainant further alleged that the Agency failed to provide documentation regarding its back-pay calculations.
The Agency contends that Complainant's leave restoration breach allegation is premature. In this regard, the Agency indicates that it is in full compliance with the Addendum. 115.75 hours of the 175.75 have been placed in a "restored leave" category, and the remaining 60 hours could not be restored because they did not fall into the "use or lose" status. The Agency indicated that "[s]hould this 60 hours of leave fall in a 'use or lose' status at the end of" the year, "it can then be converted into a 'restored leave' status, so that it may be available to Appellant for the full two years." The Agency further submits that it is under no obligation to deliver back-pay calculations to Complainant - nevertheless, it already has done so.
Complainant indicates in her appeal statement that the Agency's appeal response is the first time that it stated that she could carry over the remaining 60 hours, and that she never received the remedy ticket showing the back-pay calculation until she received the Record of Investigation. Complainant avers that the Agency should not have made it necessary for her to file an appeal to learn this information, and should pay fees for this appeal.
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, we find that the Agency is in substantial compliance with the terms of the agreement. The Commission has found substantial compliance with the terms of a settlement agreement where agencies have committed, in good faith, a technical breach of a provision of the agreement which did not undermine its purpose or effect. The Commission has also found that the failure to satisfy a time-frame specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, especially when all required actions were subsequently completed. Mopsick v. Dep't of Health and Human Serv., EEOC Appeal No. 0120073654 (Aug. 17, 2009) (citing Lazarte v. Dep't of the Interior, EEOC Appeal No. 01954274 (Apr. 25, 1996)); Sorting v. U.S. Postal Serv., EEOC Request No. 05950721 (Nov. 21, 1996), (citing Baron v. Dep't of the Treasury, EEOC Request No. 05930277 (Sept. 30, 1993)) (two-week delay in transfer of official letter of regret rather than letter of apology found to be substantial compliance.
In the instant matter, the Agency acknowledged that it breached the initial settlement agreement by failing to timely initiate the processing of Complainant's leave restoration. Thereafter, the Agency took immediate action to process Complainant's claims and subsequently entered into an Addendum to ensure correct processing of Complainant's leave restoration by DFAS. 115.75 of the 175.75 remaining hours were restored immediately, per the requirements of the processing agency, DFAS, and the Agency further explained that the remaining 60 hours would be accounted for when it was possible to do so. While we remind the Agency of its responsibility to initiate the processing of leave restoration for any future event in a timely fashion, we find no evidence that the Agency did not act in good faith. Based on the record herein, we find the Agency is complying with the Addendum to the Settlement Agreement.
CONCLUSION
After a thorough review of the record, and for the foregoing reasons, the Commission AFFIRMS the Agency's determination finding no breach of the Addendum to the Settlement Agreement.
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
__9/20/18________________
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.
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