0120101103
11-04-2010
Cheryl Lien, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency.
Cheryl Lien,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Customs and Border Protection),
Agency.
Appeal No. 0120101103
Agency No. HS07CBP000829
DECISION
Complainant filed a timely appeal with this Commission concerning the Agency's compliance with the terms of the April 14, 2008 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.
The settlement agreement provided, in pertinent part, that:
(2D) [The Agency would] pay Complainant pay from November 8, 2006, at the GS-7 level until present, without overtime and subject to applicable holdings, offset by earnings and income exempt unemployment benefits received by Complainant during the period from November 8, 2006, to present, but including interest and credit for purposes of seniority, leave, and retirement.
By letter to the Agency dated August 5, 2008, Complainant alleged that the Agency was in breach of the settlement agreement in that the agency failed to pay her the monies agreed upon. The Agency did not respond to Complainant's breach letter, and Complainant filed an appeal with the Commission.
In response to Complainant's appeal the Agency submitted a brief explaining it made a $21,000 payment to Complainant pending final computation of the amount of settlement. The Agency explained that the problems computing the amount owed was compounded by the fact that Complainant initially worked with the Customs and Border Patrol (CBP), was terminated and worked for the Transportation Security Administration (TSA), and then returned to CBP as a result of the agreement. Both TSA and CBP are components of the Agency, and the Agency asserted that the human resources and payroll system was not able to recognize an individual simultaneously working two different positions for two different agencies within DHS. Thus, the Agency asserted it was working to find a way to manually get around these complications.
Complainant's initial appeal was docketed as EEOC Appeal No. 0120084005. In a decision issued on January 30, 2009, the Commission noted the above information and found that the Agency was making a good faith effort to comply with the agreement. Specifically, the Commission found that "[t]he agency has made a good faith payment of $21,000 and is working on paying any remaining amount. The Commission does not find it has unduly delayed." Thus, at that time, the Commission found the Agency had not breached the agreement.
However, by further letter to the Agency dated September 21, 2009, Complainant alleged that the Agency was again in breach of the settlement agreement because it had still failed to pay her any additional monies. When Complainant did not receive a timely decision on her allegation from the Agency, she filed the instant appeal on December 17, 2009.1 The Agency did not initially respond to the appeal and has not submitted any documentation to the Commission. When queried as to the failure to submit the case file to the Commission, the Agency responded in an email dated October 28, 2010 that, "[t]he Commission found that [the Agency] was in compliance. According to our records, the appeal is closed." In her appeal to the Commission, Complainant submits her calculations wherein she asserts she is owed an additional $22,039.50.
In EEOC Appeal No. 0120084005, the Commission relied heavily on the Agency's statements that it was making an effort to comply with the agreement, and that the $21,000 paid to Complainant was a good faith payment until it could determine the remaining amount owed. In an affidavit dated November 7, 2008, the Agency's EEO manager stated that the Agency "continues to be working with individuals at the system office at the National Finance Center to find a way to manually work around these system complications." The Commission relied on the Agency's statement that it "was working on paying the remaining amount." It appears, however, that once the Agency received the Commission's decision, it found it was in compliance and closed the file on the matter. This was not the intention of the Commission in finding the Agency had not breached the agreement at that time. The Commission fully expected the Agency to continue its efforts to pay Complainant the remaining monies owed, given its representations that it was doing so.
Given that nearly two years have passed since the issuance of the Commission's decision in EEOC Appeal No. 0120084005, and the fact that the Agency apparently has not made any further efforts to calculate the monies to which Complainant was entitled, the Commission finds the Agency has been given ample opportunity to come up with its own calculations. Therefore, the Commission will accept Complainant's calculations showing that she is entitled to an additional $22,039.50 in back pay, given that the Agency has not responded to either her notice of breach or the instant appeal. Complainant is also entitled to any additional attorney's fees incurred in seeking these monies.
Accordingly, the Commission finds that the Agency is now in breach of the agreement and must pay Complainant the sum of $22,039.50, as well as reasonable attorney's fees associated with this appeal.
ORDER (C0610)
Within 30 days of the date this decision becomes final, the Agency is ordered to pay Complainant the additional sum of $22, 039.50.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 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 (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 (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
November 4, 2010
__________________
Date
1 Complainant certified that a copy of her appeal was sent to the Agency.
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2
0120101103
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101103