01A24225_r
12-16-2002
Donna Collins, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Donna Collins v. Department of the Air Force
01A24225
December 16, 2002
.
Donna Collins,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A24225
Agency No. WE1M01013
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, issued on August 8, 2002, finding that it was in compliance
with the terms of a February 27, 2002 settlement agreement.<1> See 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The February 27, 2002 settlement agreement provided, in pertinent
part, that:
(d) To promote Complainant to the grade of GS-13, step 2, in the
position of Supervisory Resource Management Specialist, GS-0301-13,
located in AFIT/RPX. Said promotion will be effected within 30 days
after the signing of this agreement. Complainant will not be assigned
to work under the supervision of Lt. Col. "A". Complainant will receive
time-in-grade and experience credit for the Supervisory Education Services
Specialist position, GS-1740-13, from January 1, 2000 to the time her
promotion to GS-0301-13 is effected on March 19, 2002, as set out below.
However, complainant will not receive any back pay for the period from
January 1, 2000 - December 31, 2000. Complainant will receive back
pay at the GS-13 grade for the period beginning January 1, 2001, and
extending until the time her promotion to and payment as a GS-0301-13
is effected. Complainant agrees that her receipt of back pay is subject
to appropriate tax withholdings and any other deductions required by law.
Complainant will be wholly responsible for any tax liability that may
result from her receipt of this payment
(e) To continue complainant's current GS-1740-13 detail as Director
of Admissions/Registrar through March 18, 2002. Complainant then will
assume her new GS-301-13 position in AFIT/RPX, outlined in paragraph 2d
above, on 19 March 2002.
(f) To restore to Complainant's leave account 234 hours of sick leave,
and 118 hours of annual leave. Restoration will be effected within 30
days following the signing of this agreement.
(g) To grant complainant two time-off awards of two days each, for a
total award of four days time off. Said grant will be effective not later
than 30 days following the signing of this agreement. Complainant will
use those awarded days, subject to Agency mission requirements, within
one year following the signing of this agreement.
(h) To remove complainant's AF Form 860A, Performance and Promotion
Appraisal Performance Rating for the period April 1, 2000 - March 31,
2001, from Agency records, and to replace said Rating with a new AF Form
860A for said period, (copy attached) containing the same numerical
appraisal factor ratings and the same overall performance ratings as
Complainant received for the performance appraisal period from April 1,
1999 - March 31, 2000.
(i) To issue complainant, at the appropriate time following the end of
the April 1, 2001- March 31, 2002 performance appraisal period, an AF Form
860 A for said period, containing the same numerical appraisal factor
ratings and the same overall performance rating as Complainant received
for the performance appraisal period from April 1, 1999 - March 31, 2000.
The Agency first will solicit and consider complainant's input regarding
her projects and work accomplishments during the appraisal period.
(j) To purge complainant's 971 record of negative comments regarding her
conduct or performance within 10 days of the signing of this agreement.
Complainant shall have the opportunity to review and receive a copy
of the purged 971 record, and she and the agency will work together,
in good faith, to thereafter resolve any difference of opinion which
might still exist regarding what constitutes a "negative comment."
By letter to the agency dated May 28, 2002, complainant alleged that the
agency breached the settlement agreement, and requested that the agency
implement its terms. Regarding provision (d), complainant alleged that
the agency failed to provide the appropriate documentation reflecting a
GS-13 date of rank as of January 1, 2000. The complainant also claimed
that the agency failed to explain a $4,171.41 payment. Complainant stated
that she requested that the agency pay the GS-13 differential pay from the
time when the GS-13 pay started, January 1, 2001, until March 19, 2002.
Regarding provision (g), complainant asked that the entire provision be
implemented, relating to the time-off awards. Complainant also requested
that, as set forth in provision (h), the agency either list a � 2001 date�
or �no date� by the signature blocks for the 2000-2001 Performance Rating.
Finally, complainant claiming that the 2001 handwritten mid-term notes by
CTC in the 971 folder needed to be purged as set forth in provision (j).
On June 13, 2002, the agency responded to complainant's back pay concerns.
The Chief, Section C explained that GS-13 Step 1 was used to calculate
complainant's back pay for several reasons. According to the Chief, GS-13
Step 1 was the step that complainant would have received if she were
promoted to GS-13 on January 1, 2001; and that because the agreement
set forth that date as the day of the promotion for back pay purposes
it was used for all pay calculations. Further, on January 1, 2001,
complainant was 27 days away from receiving a within grade increase to
GS-12, Step 5. Because the promotion to GS-13, Step 1 was considered
an equivalent increase, her waiting period for an increase to GS-13,
Step 2 would begin on January 1, 2001.
Complainant replied to the agency's June 13, 2002 letter in a letter dated
June 25, 2002. Therein, complainant asserted that the Employee Promotion
Brief attached to the agency's June 12, 2002 letter is not correct,
because the first two listings of experience indicates a "detail" status;
and that consequently, she is not given the "full 'experience type'
credit." Complainant requested that the first two entries be deleted.
Further, she reiterated that the back pay for 2001 should have been paid
at the GS-13 Step 2 level. She estimated that the agency, therefore, owes
her $2,000.00. In support of her argument, complainant stated that her
April 4, 2000 to March 31, 2001 appraisal reflects that she was a GS-13,
Step 2 in 2000. Regarding the time-off awards, complainant stated that
it "would be unrealistic . . . to ask for the use of time-off awards
when the paperwork had not been accomplished to grant the awards."
She stated that the award time has not yet been posted to her leave
and earning record. With respect to the 972 folder and TDY actions,
complainant argued that the "processing of these documents has been
delayed", causing her to use personal funds to pay her Government IMPAC
in a timely manner. Additionally, complainant notes that she should
be at the GS-13, step 3 level, with the appropriate back pay. Finally,
complainant requests attorney's fees and compensatory damages incurred
in obtaining implementation of the agreement terms.
On July 17, 2002, the agency provided a more detailed response
to complainant's breach allegations. The agency maintained that
complainant's back pay was properly calculated, and that the settlement
agreement language required that she be promoted to the GS-13, step 2
level; and that therefore complainant would not now be eligible for step
3. The agency indicated that the correct time-in-grade and experience
credit has also been provided to complainant. Regarding the Employee
Promotion Brief, the agency explained that the two detail experiences
were included as a result of submissions by complainant to request
additional credit for duties outside an employee's position description.
The agency stated that this is the reason that the details overlap with
the experience added by the settlement. While the agency contends that
agreement language does not require the removal of the detail entries,
it states that Colonel "A" has agreed to their removal. With respect
to the award leave, the agency explains that the time off has been and
continues to be available for complainant's use.
Complainant filed an appeal from the agency's determinations finding that
it was in compliance with the agreement, on August 3, 2002. Thereafter,
on August 8, 2002, the agency issued a brief final decision restating
its determination that no breach occurred, and providing complainant
with appeal rights.
On appeal, complainant summarizes her prior allegations of breach
and contends that: (1) she has not been provided with a copy of the
corrected Employee Promotion Brief; (2) her back-pay for 2001 should
have been based on the GS-13, step 2 level, resulting in a difference
of approximately $2,000.00; and, (3) she has not been provided with one
of the two time-off awards for two days of leave.
In response, the agency notes that has acted in good faith and implemented
many of complainant's requests that are not even provisions in the
settlement agreement. According to the agency, the central unresolved
issue is complainant's back-pay. Citing language in the settlement that
required the agency to promote complainant "to the grade of GS-13, step 2
. . . within 30 days after the signing of this agreement" and pay "back
pay at the GS-13 grade level. . . ," the agency contends that parties
did not intend complainant to be paid at the step 2 level. If this
were the intention, the agency argues, the agreement would not have
"promoted" complainant to the GS-13, step 2 level. Further, the agency
asserts that the back-pay language would have made reference to the step 2
level. Finally, the agency asserts that because complainant has not spent
a year at the step 2 level, she is not now entitled to the step 3 level.
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. Department of Defense,
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. Department 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. United States Postal
Service, 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).
Based on a review of the record, including the correspondence exchanged
between the parties, some of complainant's initial concerns, a portion
of which are not addressed by the settlement, have been resolved, i.e.,
complainant's request that: �no date� or a �2001 date� be included in
the signature blocks of her Performance Rating; her GS-13 rank be as of
January 1, 2000; the detail experiences be removed; and, an explanation
for the payment of $4,171.41 be provided. As noted above, complainant
sets forth three "deficiencies" that she believes continue to exist.
Therefore, we will address each allegation in turn.
Copy of Corrected Employee Promotion Brief
In her June 25, 2002 letter, complainant contended that her Employee
Promotion Brief still contains errors. In particular, complainant stated
that the first two listings indicate "detail" status, along with dates
that conflict with the third listing. Complainant suggested that "[t]he
solution is to remove the top two entries on page two." In response,
the agency explained that two listed details were the result of official
personnel actions. However, the agency noted that Colonel "A" agreed
to have the items removed from complainant's career brief. On appeal,
complainant contends she has not received a copy of the corrected brief.
The Commission finds that the settlement agreement does not address the
Employee Promotion Brief, nor does it require that the two detail entries
be removed. While it appears that the agency has offered to purge these
two items from the brief, we do not find that it is obligated to do so
under the terms of the settlement.<2>
Back-Pay
Provision (d) of the settlement agreement required the agency to "promote
complainant to the grade of GS-13, step 2 . . . . Said promotion will be
effected within 30 days after the signing of this agreement." Further,
"complainant will receive back pay at the GS-13 grade for the period
beginning January 1, 2001, and extending until the time her promotion
to and payment as a GS-0301-13 is effected."
Complainant acknowledges that the agency has paid her $4,171.41; however,
she argues that she is owed an additional $2,000.00. Complainant
asserts that back pay for 2001 should have been paid at the GS-13,
step 2 level, because she became a GS-13 on January 1, 2000.
We find that the settlement agreement language required complainant to
be promoted to position of Supervisory Resource Management Specialist,
at the GS-13, step 2 level within thirty days of February 27, 2002.
While complainant was to receive time-in-grade and experience credit for
another position, the Supervisor Education Services Specialist position,
from January 1, 2000 to the time her promotion was effected, she was
not elevated to the GS-13 level effective January 1, 2000. Further,
the settlement clearly states that "complainant will receive back pay at
the GS-13 grade . . . ." (emphasis added). If complainant wanted her
back pay was to be paid at the GS-13, step 2 level, she should have
had this intention reduced to a writing and included in the agreement.
With respect to complainant's contentions that she should be a GS-13,
step 3, we disagree. As discussed above, we find that the settlement
agreement promoted complainant to the GS-13, step 2 level in March 2002.
Consequently, we agree with the agency's reasoning that complainant is
not currently eligible for the step 3 level.
Accordingly, the agency decision finding that it was in compliance with
the back pay provision of the agreement was proper.
Time-off awards
In provision (g), the agency was required "to grant complainant two
time-off awards of two days each . . . . Said grant will be effective
not later than 30 days following the signing of this agreement."
The agency maintains that the awards have been available, and continue
to be available, for complainant's use. In her June 25, 2002 letter,
complainant argues that it would be unrealistic to ask for use of the
award before the paperwork granting the awards had been processed.
On appeal, she notes that she has not been provided one of the two awards.
The Commission finds that while the agency maintains that the award is
available to complainant, there is no evidence in the record supporting
their assertion. We agree with the complainant that the agency's
position, that it stands ready and is prepared to grant complainant
the time off award when asked, is insufficient. Instead, some type
of documentation reflecting that the awards have been granted would be
necessary. Therefore, we find that the agency has breached provision
(g) of the agreement. The agency is ordered to implement provision (g),
and provide evidence of its actions in accordance with the ORDER below.
CONCLUSION
Accordingly, the agency's decision finding no breach with respect to the
Employee Promotion Brief and back pay issues was proper and is hereby
AFFIRMED. The agency's decision finding no breach of the time-off award
provision was improper and is hereby REVERSED. On REMAND the agency
shall comply with the terms of the settlement agreement in accordance
with the Order below.
ORDER
The agency is ORDERED to specifically implement the provision (g) of the
settlement agreement within sixty (60) calendar days of the date that the
decision becomes final. Specifically, the agency is ordered to provide
Complainant with documentation granting one time-off award for two days.
The agency shall provide the Commission with proof of its implementation
of provision (g) in accordance with the Implementation provision below.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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 19848,
Washington, D.C. 20036. 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 (T0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
December 16, 2002
__________________
Date
1 The record indicates that complainant alleged breach on May 28,
2002 and the agency responded in letters issued on June 25, 2002 and
July 17, 2002. However, the agency did not issue a decision until after
complainant filed her appeal with the Commission on August 3, 2002.
2Complainant is advised to contact the agency to obtain a copy of the
brief, that the agency offered to alter in its July 17, 2002 letter.