0120140505
04-29-2014
Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Health Resources and Services Administration), Agency.
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Health Resources and Services Administration),
Agency.
Appeal No. 0120140505
EEOC Hearing No. 531-2012-00278X
Agency No. HHS-HRSA-0311-2011
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated October 23, 2013, 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 complaint, Complainant worked as a Staff Accountant at the Agency's Health Resources and Services Administration (HRSA), Division of Financial Integrity / Office of Federal Assistance Management facility in Rockville, Maryland.
On June 18, 2013, Complainant and the Agency entered into a settlement agreement to resolve the above-referenced EEO complaint. The settlement agreement provided, in pertinent part, that:
(Paragraph 15)
The Agency agrees to effect a retroactive promotion of Complainant to the GS-14, Step 6, level, effective July 3, 2011, and to contribute all appropriate Agency contributions to the CSRS retirement fund consistent with such an action within ninety (90) calendar days of the date of the effective date of this Agreement.
(Paragraph 18)
The Agency agrees to restore to Complainant the sick leave used from August 20, 2012, to the effective date of this Agreement. The Agency agrees to take the actions within its power to do so within ninety (90) days of the effective date of this Agreement, including submitting any necessary information to Defense Finance and Accounting Services (DFAS) no later than such date. The Parties understand that the Agency has no control over how long DFAS will take to effectuate any leave in which its involvement may be required.
(Paragraph 26)
If Complainant believes that the Agency has breached any term of this Agreement, he shall notify in writing the Director, Office of Equal Opportunity, Civil Rights and Diversity Management, Health Resources and Services Administration...within thirty (30) calendar days of the date Complainant knew or reasonably should have known of the alleged breach. The Director will review the matter, make a determination as to whether a breach occurred, and notify both parties of such decision.
(Paragraph 27)
If the Complainant is not satisfied with the Agency's attempt to resolve the matter, Complainant's remedies shall be set forth in 29 C.F.R. 1614.504.
(Paragraph 28)
This Agreement constitutes the complete understanding between Complainant and the Agency with respect to the matters encompassed in this Agreement.
On August 22, 2013, the Agency issued the Standard Form 50 (SF-50) effectuating the retroactive promotion. On September 26, 2013, DFAS informed HHS that they had processed Complainant's sick leave restoration and that they would have the debt and retirement teams set up the appropriate change for the retirement contributions.
On October 1, 2013, Complainant received a retirement payment that he believed did not reflect his retroactive promotion and did not include the retirement contributions that he believed was required. Complainant also received a letter from the Agency informing him that the Agency had restored 1,463 hours of sick leave. The Agency restored sick leave for a total of 25 work days and one hour, which represented the sick leave used during the span between August 20, 2012 and the effective date of the Agreement.1 Complainant asserts that the Agency continues to owe Complainant 217 hours of unpaid sick leave for a total of 210 days or 1,680 hours of sick leave. In addition, Complainant received a notification from the Office of Personnel Management (OPM) that OPM changed his monthly annuity to an amount that was less than the OPM estimates which he considered before entering the Agreement with HHS.
By email dated October 22, 2013, Complainant's counsel advised the EEO Office Director that Complainant had not yet received restoration of sick leave or the retroactive promotion and "benefits awarded by the settlement." Her email did not inform the Agency that Complainant's concerns pertained to the correctness of the number of sick leave hours restored and whether the Agency made the appropriate retirement contributions.
On October 23, 2013, the EEO Director responded, via email, to Complainant's counsel. Complainant referenced the email communication (Complainant's Exhibit 3 on appeal) as the Agency's decision. In its October 23, 2013 email, the Agency concluded that the Agency had timely sent the sick leave restoration to DFAS and processed the retroactive promotion. The email invited Complainant's attorney to advise the Agency if there were other concerns.
Around November 6, 2013, DFAS notified the Agency that it had completed its audit specifying the exact retirement contribution due to Complainant. Complainant was notified that Complainant's retirement records had been corrected and submitted to OPM.
On November 20, 2013, Complainant's counsel raised the issue of the accuracy of the sick leave hours. She advised the Agency that Complainant was still unsure that the retroactive promotion had been effected and expressed a concern about the annuity amount.
On November 21, 2013, the Agency provided Complainant's counsel a copy of the SF-50 and asked that Complainant's counsel properly present her concerns to the Agency to allow it to address the concerns.
Although the Agency had not issued a Final Agency Decision, Complainant's counsel filed this appeal because she believed she had to do so to preserve Complainant's right to appeal.
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 knowingly entered. As such, it is binding on both parties.
On appeal, Complainant contends that the Agency has not fully complied with Paragraph 15 of the Agreement that requires appropriate contributions to the CSRS retirement fund consistent with the retroactive promotion within ninety days of the effective date of the Agreement.
The Agency says that the appeal should be dismissed as improper because Complainant did not first present the allegations to the Agency and because the Agency has acted in good faith to comply with the Agreement.
Restoration of Sick Leave
In the instant case, the Agreement provided that the Agency agrees to restore to Complainant the sick leave used from August 20, 2012 to the effective date of this Agreement. The record shows that Complainant was credited with the sick leave actually used. The Agency's Time and Leave record shows that Complainant was not on sick leave for the number of days (210) that Complainant claims. Complainant used annual leave for some of the days and he had been granted holiday leave and administrative leave for other days claimed.
Promotion and Appropriate Retirement Contributions
The record shows that Complainant received a retroactive promotion. The Agreement also specifically stated that Complainant waived all back pay and benefits associated with the retroactive promotion, except for the contributions to the CSRS retirement fund. The amount of contribution was not specified. There is no evidence that the Agency did not provide the appropriate contributions that were due.
The record supports the Agency's position that it made a good faith effort to comply with the terms of the Agreement. Moreover, the record shows that the Agency complied with the two terms which were the focus of Complainant's October 22, 2013 email and after the Agency was made aware of Complainant's concerns.
Further, we find that to the extent that the Agency actions constituted a breach, the Agency's actions of revisiting the sick leave determination and the calculation of retirement contributions immediately after Complainant raised those two issues with the EEO Office on October 22, 2013, cured any such breach. From the record, there is no indication that Complainant did not receive the appropriate retirement contributions that were due.
Finally, the Commission has held that pursuant to 29 C.F.R. 1614.504(b), an agency has 35 days from the receipt of a complainant's allegation of noncompliance to resolve the matter, or cure any breach that occurred. Complainant v. Department of the Air Force, EEOC Appeal No. 0120140529 (March 6, 2014). The Commission has further held that if an agency cures a breach during the 35 day period after the filing of a breach claim, it will be deemed to be in compliance. Eckholm v. Department of Veterans Affairs, EEOC Appeal No. 0120091193 (April 29, 2009). We therefore find that the Agency has complied with the Agreement.
CONCLUSION
We AFFIRM the Agency's determination finding no breach of the Agreement.
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 (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
April 29, 2014
__________________
Date
1 The Administrative Time and Leave Records for Complainant reflect that Complainant used annual leave on August 20-24, 2012, November 19-21, 23 and 26-30, 2012, and December 3, 2012. His absence was excused as a holiday on December 24, 2012. He was on Administrative Leave on October 29-30, 2012, March 6, 2013 and June 17-20, 2013. He was not charged any leave for May 16-17, 2013. He was charged seven (7) hours of sick leave (rather than eight) on March 22, 2013.
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0120140505
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120140505