0120170025
07-12-2018
Brandee B,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Brandee B,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120170025
Agency Nos. FS-2012-00413
FS-2012-00592
FS-2012-00956
FS-2014-00893
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency dated September 8, 2016, finding that it complied with the terms of an April 30, 2016 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
During the period at issue, Complainant was a former employee with the Agency, in San Dimas, California.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process.
On April 30, 2016, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, the following affirmative Agency obligations:
(1) To the extent such documents are contained within [Complainant's] Official Personnel Folder, or the formal personnel files concerning [Complainant] maintained by the Agency in Washington, D.C., or the San Dimas Technology & Development Center (SDTDC) in California (to the extent such files exist) to remove the following: to purge any and all documents that make reference to [Complainant's] removal and proposed removal, including but not limited to the October 30, 2013 Notice of Decision on Proposed Removal and the August 1, 2013 Notice of Proposed Removal; and [Complainant's] Absent Without Leave (AWOL) status in 2013. The Agency will implement this term within forty-five (45) calendar days of the Effective Date of this Agreement;
(2) Maintain the confidentiality and privacy of any and all medical records on [Complainant] in accordance with the Protective Order issued by EEOC Administrative Judge Kathleen Mearn Clarke on June 4, 2015, and the applicable EEOC rules and regulations pertaining to EEO and EEOC hearing records. This does not preclude the Agency and/or the Agency's counsel from destroying all copies of such medical records after the dismissal of EEOC Complaint Nos 520-2014-00169X and 520-2013-00326X. Furthermore, the Agency and the Agency's counsel agree that they will abide by their obligations under the Privacy Act and HIPAA to maintain the confidentiality of [Complainant's] confidential medical information in their possession.
(4) To rescind in its entirety the SF-50 reflecting [Complainant's] October 30, 2013 removal, and to issue a SF-50 reflecting [Complainant's] last day of employment as May 8, 2013. The "Remarks" section of the separation SF-50 will state only "Disability Retirement." The Agency will provide a copy of the SF-50 to [Complainant's] representative. The Agency will implement this term no later than forty-five (45) calendar days after the Effective Date of this Agreement.
(6) To pay [Complainant] back pay in an amount based on the amount of leave without pay (LWOP) reflected on [Complainant's] time and attendance records for the Pay Periods from 5 through 15 in 2012 (February 12 through July 14, 2012), as calculated by the Agency. The back pay will be calculated using [Complainant's] pay rate during the Pay Periods specified above. The back pay will be subject to applicable federal and state tax deductions and contributions, including Medicare and Social Security, and a deduction for the employee contribution to Federal Employees Retirement System ("FERS"). The Agency will be responsible for the Agency contribution for FERS. The payment will be subject to any other deductions or contributions associated with federal employee payroll, such as contributions to the Federal Employees Group Life Insurance (FEGLI). Thrift Savings Plan (TSP), or Federal Employee Health Benefits ("FEHB")
(6a) The Agency agrees to issue to [Complainant] an IRS Form W2 reflecting the back pay described above. [Complainant] agrees to provide any necessary IRS forms, including a W-4 form to allow the Agency to calculate the deductions specified above;
(6e) The Agency will instruct the National Finance Center ("NFC") to report the back pay, as necessary and appropriate under applicable laws, rules, and regulations, to the Social Security Administration as back pay for [Complainant's] employment in 2012. This instruction will be given at the same time the Agency submits the payment request to NFC referenced in subparagraph 6d above;
(7) To pay [Complainant] a lump sum of One Hundred, Eleven Thousand, Five Hundred Dollars ($111,500) minus the gross amount of back pay specified above in Paragraph 6 ("gross amount of back pay" means the calculated back pay before any deductions). This lump sum is inclusive of any and all compensatory damages, attorney's fees, costs, and other damages of any type, if any, arising out of or regarding Complainant's employment with the Agency through the Effective Date of this Agreement;
(7a) The Agency agrees to issue to Complainant an IRS Form 1099 regarding this lump sum payment;
(8) To pay Complainant's Representative [named individual] a lump sum of Eight Thousand, Five Hundred Dollars ($8,500).
(8c) The Agency will issue an IRS Form 1099 regarding this payment.
By letter to the Agency dated July 18, 2016, Complainant alleged breach, and requested that the Agency specifically implement the terms of the instant settlement agreement. In documentation dated August 8, 2016, the Agency responded to Complainant's breach allegations and provided details regarding its compliance with the settlement. On August 13, 2016, however, Complainant expressed dissatisfaction with the Agency's response regarding compliance with the settlement. Complainant again advised the Agency that it had breached the subject agreement. Thereafter, on September 6, 2016, the Agency submitted to counsel for Complainant, a second response to Complainant's breach allegations. Without commenting on the Agency's second response to her breach allegations, Complainant filed the instant appeal.
The Agency argues that Complainant's appeal to the Commission is premature. The Agency contends that Complainant improperly filed the instant appeal regarding her breach allegations without responding to the Agency's September 6, 2016 response to Complainant's concerns.
EEOC Regulation 29 C.F.R. � 1614.504(b) provides that if a complainant is not satisfied with the agency's attempt to resolve the settlement concerns, the complainant may appeal to the Commission for a determination as to whether the agency has complied with the terms of the settlement agreement or decision. In that regard, we find that the appeal is properly before the Commission regarding the Agency's compliance with the April 30, 2016 settlement agreement.
In its September 6, 2016 response to Complainant's breach allegations, and it its brief in opposition to the instant appeal, the Agency determined that it was in compliance with the settlement. The Agency's specific response to Complainant's breach allegations are detailed below.
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).
Provision (1)
Regarding provision (1), Complainant asserts that the Agency failed to purge all documents that make reference to Complainant's removal, proposed removal and Complainant's AWOL status in 2013. The Agency provided Complainant with copies of her time and attendance records reflecting that the 2013 AWOL status was changed to approved leave without pay (LWOP). The Agency further provided a copy of standard form 1150 (record of leave data) showing that Complainant's AWOL hours had been removed from her official record as well.
Provision (2)
Regarding provision 2, the Agency agreed it would be required to maintain the confidentiality of Complainant's medical records. The Agency is further bound to its obligation to maintain Complainant's privacy concerning her medical records pursuant to a Protective Order issued on June 4, 2015 by the presiding Administrative Judge. However, in her allegation of breach, Complainant argues that the Agency has failed to comply with provision 2 and in support of its claim of compliance, requests that the Agency provide a "properly verified statement with proper declaration and proper signature offered by a qualified person." The Agency argues that Complainant's request goes outside the scope of the agreement and we agree. The settlement does not obligate the Agency to provide any additional statement as requested by Complainant.
Provision (4)
Regarding provision (4), the Agency was obligated to rescind the SF-50 Form reflecting Complainant's October 30, 2013 removal action. The Agency was also required to issue a new SF-50 indicating Complainant's last day of employment as May 8, 2013 for "Disability Retirement." The Agency was required also to provide Complainant's representative with a copy of the SF-50. The record indicates that the Agency provided the document as agreed and additionally, certified to Complainant that the old SF-50 had been rescinded and replaced by a new form reflecting disability retirement. However, through counsel, Complainant alleges that the Agency breached this portion of the agreement by not providing an SF-50 indicating that the October 30, 2013 removal action had been cancelled. We find that the settlement agreement does not place such obligation on the Agency. The Agency has established its compliance with provision (4) of the settlement agreement.
Provision (6), (6a) and (6e)
Regarding provision (6), the Agency agreed to pay Complainant back pay for pay periods 5 through 15, 2012 based on the amount of leave without pay reflected on Complainant's time and attendance records. The back pay was to be calculated using Complainant's pay rate during the pay periods specified above from February 12 through July 14, 2012. In provision (6a), the Agency had another affirmative obligation: to issue Complainant an IRS form W2 based on appropriate back pay calculations. Finally, provision (6e), required the Agency to instruct the National Finance Center to report the pack pay as required by law to the Social Security Administrative as back pay employment in 2012.
The Agency indicated that Complainant was initially provided a net lump sum payment of $20,377.41 on July 15, 2016. Subsequently, the Agency discovered three separate errors in the calculation of Complainant's pay bay. Following discovery of the unintentional errors, the Agency took steps to correct them quickly. The record indicates that Complainant received one reimbursement check in the amount of $1,347.05 on July 25, 2016, and two reimbursement checks for $1,443.40 and $102.95 on August 26, 2016. The record further indicates that at the time of Complainant's breach allegation, the 2017 W-2 forms had not yet been issued to federal employees for the 2016 tax year. According to the Agency, and in compliance with the settlement agreement, the Agency will issue Complainant a W-2 form in the normal course of its business. The Agency correctly notes that the settlement does not obligate the Agency to provide Complainant with a W-2 any sooner than it normally would.
The Agency further notes that provision (6e) requires the Agency to instruct the National Finance Center to report Complainant's pack back pay to the Social Security Administration. The Agency provided a copy of the Special Payroll Processing System form prepared for the payment of back pay. The form is annotated in the remarks section, "2012 Back pay to be reported to Soc. Security Admin., as necessary & appropriate under applicable law, rules, and regs." Upon review, we find that the Agency has complied with the provisions identified above; (6a), (6c) and (6e).
Provisions (7), (7a), (8) and (8a)
Regarding provision (7), the Agency was obligated to pay Complainant a lump sum of $111,500 minus the gross amount of back pay as indicated in provision 6. In provision (7a), the Agency was required to provide an IRS Form 1099 concerning this payment. The Agency further agreed in provision (8), to pay Complainant's attorney's fees of $8,500, and in (8a), to issue an IRS Form 1099 concerning this payment.
The record indicates that the Agency issued payments to Complainant as indicated above. According to the Agency at the time of Complainant's allegations of breach, the IRS had not yet released tax forms for the 2016 tax year. The Agency further indicates that upon receipt of the 1099 forms for tax year 2016 from the IRS will issue the appropriate forms to Complainant in accordance with the agreement between the parties.
A review of the record herein, indicates that the Agency has persuasively established its compliance with the April 30, 2016 settlement agreement between the parties. Complainant has failed to demonstrate that the Agency breached provisions of the settlement agreement as alleged.
CONCLUSION
The Agency's final determination that it did not breach the subject settlement agreement is AFFIRMED for the reasons discussed above.
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
July 12, 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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