0120180766
06-05-2018
Billi D.,1 Complainant, v. Robert L. Wilkie, Jr., Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Billi D.,1
Complainant,
v.
Robert L. Wilkie, Jr.,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120180766
EEOC Hearing Number 430-2015-00273X
Agency Nos. 200405582014101122,
20040558201510404, 200405582016103977
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated November 21, 2017, 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
At the time of events giving rise to this compliance action, Complainant was a Nurse Manager, Series 610, VN 02-14 at the Agency's Durham VA Medical Center facility in Durham, North Carolina.
On June 27, 2017, Complainant and the Agency entered into a settlement agreement to resolve the above-referenced EEO matters. The settlement agreement provided, in pertinent part, that:
(1a) The Agency will retroactively promote Complainant to the Nurse Manager position, Series 610, VN 02-14 effective December 1, 2013. The Agency agrees to pay pursuant to the Back-Pay Act the difference in pay and benefits between the Nurse Manager position and Complainant's current position in Series 610, VN 02-12. Within 45 days after the execution of this Agreement, the Agency shall agree to submit the necessary documents to process the retroactive promotion;
(1b) As to Complainant's 2013-2014 performance rating, the Agency agrees to pay the difference in the award amount from a rating of Satisfactory to a rating of High Satisfactory;
(1c) As to Complainant's 2014-2015 performance rating, the Agency agrees to pay the difference in the award amount from a rating of Satisfactory to a rating of High Satisfactory;
(1d) As to Complainant's 2015 - 2016 performance rating, the Agency agrees to pay the difference in the award amount from a rating of Satisfactory to a rating of High Satisfactory;
(1f) The Agency will pay the amount of Fifty thousand dollars and zero cents ($50,000.00) to the Complainant; and
(2c) Except as expressly set forth in Paragraph One (1) above, [Complainant] expressly waives any claims of costs fees, expenses, attorney's fees, back pay (under the Back-Pay Act, compensatory damages, restoration of leave, or damages of any kind, which may have arisen from or been incurred in pursuit of the above referenced complainant or allegations and which may have occurred prior to the execution of this Agreement.
By letter to the Agency dated September 28, 2017, Complainant alleged that, as of that date, the Agency had not fully complied with processing Complainant's retroactive promotion and paying her all of her back pay pursuant to the Back-Pay Act and the adjusted award amounts. She requested that the Agency specifically implement its terms. Specifically, although Complainant acknowledged that she "received the $50,000 in damages" as of August 21, 2017, along with an additional $6,094.40, Complainant alleged that the Agency failed to provide evidence that it submitted the necessary documents to process Complainant's retroactive promotion and had failed to pay the compensatory damages which she said were due under the terms of the settlement agreement.
The record shows that by July 6, 2017, Complainant was paid $52,753.01. Included in the amount was $1,200 paid in three increments as the award amount adjustments. On October 6, 2017, the Agency representative provided Complainant's representative with the SF-50s that she requested.
In addition, the Civilian Payroll Supervisor provided a chart that denoted the back pay for the periods of December 14, 2013 to May 27, 2017. For the pay periods ending January 10, 2015, Complainant was awarded back pay in the amount of $18,344.80; $16,780.13 for the period ending January 9, 2016; $7,843.20 for the pay periods ending June 25, 2016 and $9,784.88 for the period ending May 27, 2017. The record includes a Defense Finance and Accounting Service statement that shows the gross back pay as $43,085.37 and that the adjusted gross back pay had been adjusted to provide the interest on the back pay owed in the amount of $4,219.84 for total earnings of $47,305.21. From that amount, the Agency deducted a total of $20,527.22. The deductions were itemized.
Agency Decision
The Agency concluded that it complied with the Agreement. The Agency reasoned that it met all of its obligations within a reasonable period of time, given the complexities of the payout amounts.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that the amounts Complainant received do not coincide with the amounts the Agency listed in the Final Agency Decision. She also states that she has not received itemizations of her back pay in order to decipher whether the monetary deposits Complainant received constituted her full back pay as required by the settlement agreement. Complainant stated that she filed this appeal because she has no way of knowing whether Complainant has been paid her full back pay as required by the settlement.
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).
We find that the Agreement is valid and binding on both parties.
In the instant case, the Agreement required the retroactive promotion of Complainant and the issuance of back pay and award adjustments. The Agreement did not specify the exact amount of the back pay or the award adjustments. The record shows that the Agency paid Complainant back-pay and made other adjustments to the award amounts. The record includes the DFAS calculations and a delineation of the back-pay amounts. We find that Complainant has not met her burden to show that the Agency breached the Agreement in this matter.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
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 tends 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
June 5, 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.
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