0120120823
05-17-2012
Brenda Joan T. Miller, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.
Brenda Joan T. Miller,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs
(Veterans Benefits Administration),
Agency.
Appeal No. 0120120823
EEOC Case No. 510-2009-00202X
Agency No. 2001-0317-2008102217
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated October 18, 2011, 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. For the following reasons, the Commission MODIFIES the Agency's final decision and REMANDS the matter to the Agency for supplemental information.
BACKGROUND
The record shows that the parties entered into a formal settlement agreement (Agreement) on February 24, 2011, with the assistance of the Administrative Judge in EEOC Hearing No. 510-2009-00202X. The Agreement provided, in pertinent part that the Agency agreed to:
(3g) Provide Complainant with the right to assistance with her workload in instances when Complainant's case count stays at or above 165 cases for three consecutive months. In such instances, when Complainant requests assistance with her workload, the Agency agrees to take appropriate steps in light of contemporaneous resources and funding available (with options including, but not limited to assignment of contract assistance, assignment of work-study assistance, and transfer of cases from Complainant) to reduce Complainant's case count below 165 as soon as practicable . . .
(3h) Grant Complainant a step increase, retroactive to November 25, 2007 (with back pay estimated at roughly $6,000.00-$7,000.00; retirement service credit and applicable interest, preserving Complainant's preexisting entitlement to any additional step increases.
Subsequent to the execution of the subject Agreement, Complainant has raised additional claims for reprisal and harassment. In addition, on March 31, 2011, Complainant alleged a breach of the Agreement. Complainant withdrew the March 31, 2011 breach claim following May 9, 2011 mediation on her EEO claims. On May 13, 2011, the parties executed a second final resolution agreement.
By letter to the Agency dated August 17, 2011, Complainant alleged that the Agency was in breach of provision 3(g) and 3(h) of the first Agreement. Specifically, Complainant alleged: 1) the Agency failed to keep her inventory at or below 165 cases, and 2) the Agency failed to pay her the estimated back pay amount and interest specified in the settlement. She seeks a delineation of how the Agency calculated the money paid and whether this included her regular pay. Alternatively, Complainant requests that the matter "go back to the Judge who helped us to settle our disputes and try to finally resolve these issues".
In its FAD, the Agency concluded that it complied with the terms of the Agreement. With regard to provision 3(g), management responded that Complainant has been offered contracting assistance which Complainant refused. Management also indicated that the Agency provided work study employees to Complainant and transferred cases.
With regard to provision 3(h), on September 15, 2011, the Human Resources Specialist sent Complainant an email that stated that the Defense Finance and Accounting Services (DFAS) had completed the settlement Back Pay and Interest for Complainant's case. The Human Resources Specialist stated that the gross payment of $6,514.28 included her regular pay and resulted in a net payment of $3,207.31. The email also acknowledged that, "we have not received a spreadsheet from DFAS with details regarding the retro payments issued. When we do, we will reconcile and provide you a copy." The record does not show that Complainant received the full payment or the itemization of all of the payments.
CONTENTIONS ON APPEAL
On appeal, Complainant states that the only items in question are items 3(g) and item 3(h). With respect to item 3(g), Complainant acknowledges that the Agency allowed her to transfer cases, provided her work study staff assistance and offered her the assistance of a contractor, but Complainant declined to use a contractor.
With respect to item 3(h), Complainant states that the Agency only paid her $3,536.00 of the estimated $6,000.00 to $7,000.00 settlement amount due. Complainant argues that the Agency wrongfully counted the salary to which she was already entitled as part of its back pay calculations.
ANALYSIS AND 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).
In the instant case, we find that the Agency complied with the term 3(g) of the Agreement that required that it offer assistance because the record shows that the Agency provided contract employee assistance and also work-study staff assistance. The record does not show that Complainant requested any other alternatives for assistance that were not granted.
With regard to the claim that the Agency did not provide full back-pay relief, we find that the record is incomplete. Specifically, the record does not show whether the Agency provided Complainant with the full amount estimated in the Agreement. An itemization of the payment amounts, payment bases and dates paid and proof of payment are required before we can make an informed determination as to whether the Agency has fully complied with the terms of the Agreement.
CONCLUSION
Therefore, the Commission AFFIRMS the Agency's decision in part and MODIFIES in part. The Commission AFFIRMS the finding that the Agency complied with the Agreement provision 3(g). We find, however, that the record is inadequate to determine whether the Agency has fully complied with provision 3(h). We REMAND the question of whether the Agency has complied with the requirement to grant Complainant a step increase, retroactive to November 25, 2007 with back pay estimated at roughly $6,000.00 to $7,000.00, retirement service credit and applicable interest.
ORDER TO SUPPLEMENT RECORD
We find that the record is incomplete with regard to whether the Agency has fully complied with provision 3(h).
Within thirty (30) days of receipt of this order, the Agency shall conduct a supplemental investigation which shall include the following actions:
a) Show proof that the Agency granted Complainant a step increase, retroactive to November 25, 2007 (along with the date that this was completed);
b) Show proof of each and every payment made by the Agency, along with the dates of payment for the back pay estimated at roughly $6,000.00 to $7,000.00, along with the interest paid, as well as any deductions;
c) Show proof of the retirement service credit; and
d) Show any subsequent step increases and the dates of the step increases provided to Complainant.
Upon completion of the investigation, the Agency must provide the Complainant with a copy of the supplemental record and findings and return the completed record to the Compliance Officer, as referenced below. The Complainant may, within fifteen (15) days of receipt of the supplemental record, submit a statement concerning the supplemental record to the Compliance Officer. Upon receipt by the Compliance Officer, the supplemental record will be included in the appeal file and the appeal will be processed appropriately.
In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-23 (November 9, 1999), the Agency shall give priority to this remanded case in order to comply with the time frames contained in this Order. The Office of Federal Operations will issue sanctions against agencies when it determines that agencies are not making reasonable efforts to comply with a Commission order to investigate a complaint.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 (M0610)
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 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), at 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0610)
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
May 17, 2012
__________________
Date
2
0120120823
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120823