0120091483
08-18-2009
Bertram A. Knitter, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Bertram A. Knitter,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120091483
Agency No. HS-07-CBP-001067-000618
DECISION
On February 24, 2009, complainant filed an appeal with this Commission
regarding an alleged breach of a September 25, 2008 settlement agreement
reached between him and the agency.
The September 25, 2008 settlement agreement provided, in pertinent part,
that:
1. In exchange for the promises made by the Agency in Paragraph 2 of
this Agreement, the Complainant agrees to the following:
..........
b. To separate from employment with the Agency effective January 3, 2009.
Complainant's letter of resignation shall be executed in writing and
provided to the Agency contemporaneous with the signing of this Agreement.
A copy of the signed letter of resignation is attached to this Agreement.
..........
2. In exchange for the promises made by the Complainant in Paragraph 1
of this Agreement, the Agency agrees to the following:
a. To promote the Complainant from a grade GS-13, Step 8, Health
and Fitness Specialist, to a grade GS-14, Step 5, Program Manager,
retroactive to February 5, 2006, via a personnel action including all
necessary documentation. The promotion paperwork will be completed
within 30 days from the date this Agreement is executed by the Parties.
When this action is completed, Complainant will be paid at the GS-14,
Step 5 level.
b. To pay the Complainant back pay with interest, minus any deductions
required under appropriate law, from April 1, 2007, to the date payment
is made to the complainant at the GS-14, Step 5 level. The Agency
agrees to take all reasonable and appropriate actions to facilitate and
expedite payment of the money owed to Complainant under this Agreement.
The Agency agrees to use its best efforts to ensure that payment of back
pay be made no later than ninety (90) days from the date this Agreement
is executed by the Parties.
c. Complainant will not receive back pay for the time period between
February 5, 2006, through March 31, 2007.
d. To make full payment to all executive Agencies, including the Office
of Personnel Management (OPM), for the amounts of applicable employee
deductions and Agency contributions required to ensure that Complainant's
retirement benefits will be calculated based upon the entire period
of the retroactive promotion dated February 5, 2006. These payments
include monies due under the Federal Insurance Contributions Act (FICA),
Thrift Savings Plan contributions, and contributions to OPM administered
programs, including the retirement fund. The Agency agrees to take all
reasonable and appropriate actions to facilitate and expedite these
payments. The Agency agrees to use its best efforts to ensure these
actions shall be completed no later than ninety (90) days from the date
this Agreement is executed by the Parties.
c. To pay the Complainant fifty nine thousand dollars ($59,000) without
interest, as compromised amount in settlement of attorney's fees,
expenses, and costs incurred in connection with the complaint described
above. This payment shall be made in the form of a check payable to
[a named attorney] Payment of attorney's fees shall be made no later
than forty five (45) days from the date this Agreement is executed by
the Parties.
By letters to the agency dated December 30, 2008 and February 23, 2009,
complainant alleged breach. Specifically, complainant stated that the
agency "has violated its agreements to: separate the Complainant from
employment with the Agency effective January 3, 2009; to keep the terms
of the agreement strictly confidential; and to take all reasonable and
appropriate actions to facilitate and expedite payments under the Federal
Insurance Contribution (FICA), Thrift Savings Plan and OPM administered
programs including the retirement funds." Complainant further stated
that the agency's negligence in his premature retirement has caused
the cancellation of his life insurance; failure to withhold Federal
and State taxes and failure to keep his health insurance active which
"have caused excessive stress for the Complainant and his family."
Complainant states "now, almost 90 days latter, the premature separation
problem has yet to be resolved. Once again the poor judgment and
decisions made by HRM management officials are deeply troubling and
represent a virtual thumbing of their nose at the authority of the EEO
process." Moreover, complainant stated that because the agency "has
not met this conditions and due to the estimated time to rectify it,
the Complainant is entitled to immediate temporary reinstatement until
the conditions of the Settlement are carried out."
In the instant matter, the agency did not issue a final agency decision
with appeal rights to the Commission. However, on April 17, 2009, the
agency issued a response to complainant's appeal. Therein, the agency
states that it did not breach the September 25, 2008 settlement agreement.
The agency argues that there is no provision in the agreement requiring
the agency to continue complainant's employment until the agency completed
the actions set forth in Paragraph 2 of the agreement. The agency
states that while it committed an administrative error which caused
complainant's resignation to be processed effective November 28, 2008,
it corrected the administrative error immediately upon being notified of
it by complainant. The agency also states that it reversed the erroneous
resignation action before complainant's biweekly pay was interrupted.
The agency states that complainant voluntarily retired from agency
employment effective January 2, 2009 per provision 1.b. of the agreement.
In support of its assertions, the agency provided copies of personnel
actions and complainant's Statements of Earnings and Leave (SEL).
Regarding complainant's assertion that the agency made public disclosure
of the instant agreement, the agency determined that because complainant
has not made a specific allegation of improper disclosure, it was
unable to provide a more detailed reply. With respect to complainant's
allegation that his health benefits and insurance was discontinued
and that his TSP account was wrongfully closed, the agency stated that
it took prompt action to void the termination of his health insurance
coverage and reinstate the coverage without interruption immediately upon
being notified of it by complainant. The agency stated that according
to complainant's SEL for Pay Periods 23 through 26, the record reflects
that approximately $12,000 of complainant's pay was contributed to his
TSP account prior to his voluntary retirement effective January 3, 2009.
The agency further stated that a review of complainant's SEL for the
relevant time period also shows that the agency made contributions to
FICA, TSP and the retirement fund after November 28, 2008.
With respect to complainant's allegation that his retirement benefits
were wrongfully reduced, the agency concluded that complainant has not
provided any documentation of such reduction. Regarding complainant's
allegations that agency officials were involved in wrongful acts which
negatively impacted his potential employment with another component of
the agency, the agency argued that complainant was alleging a new act
of discrimination which should be processed as a separate complaint.
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. Department of Defense,
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. Department 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. United States Postal
Service, 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 determines that the record in
this case contains insufficient evidence for us to determine whether
a breach of the September 25, 2008 settlement agreement has occurred.
We note, for example, the agency's response to complainant's appeal
is predicated upon written documentation, including personnel actions
and complainant's SEL. However, the record contains no affidavits
from agency officials indicating that they purportedly fulfilled the
obligations under the terms of the settlement agreement. Given this
lack of evidence, we are unable to ascertain whether the agency complied
with the settlement agreement. Accordingly, the agency's response of no
breach of the settlement agreement is VACATED. 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 instant settlement agreement.
The supplementation of the record shall include any documentation, such
as an affidavit from agency officials and those directly involved in
handling complainant's voluntarily retirement, indicating whether the
agency complied with the terms of the agreement. Within thirty (30)
calendar days of the date this decision becomes final, the agency shall
issue a new decision concerning whether it breached the September 25,
2008 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 (K1208)
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 (M1208)
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 (R0408)
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 (Z1008)
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
August 18, 2009
__________________
Date
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0120091483
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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