0120132079
09-13-2013
Dori E. Richards, Complainant, v. Sally Jewell, Secretary, Department of the Interior, Agency.
Dori E. Richards,
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120132079
Agency No. OS-12-0435
DECISION
On April 19, 2013, the Equal Employment Opportunity Commission (EEOC or Commission) received Complainant's appeal following her March 8, 2013, written allegations of non-compliance with a settlement agreement the parties made. The Agency had not made a determination thereon, and accordingly Complainant's appeal was timely. 29 C.F.R. � 1614.504(b). Thereafter, while the appeal was pending, on May 20, 2013, the Agency issued a final Agency determination (FAD) finding no breach. Complainant wrote that she was challenging the FAD, and we find the appeal covers the matter.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Attorney Advisor at the Agency's Office of the Solicitor, Southwest Regional Office in Albuquerque, New Mexico.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process, and filed a formal complaint. Thereafter, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
6. Prior to close of business on December 31, 2012, the Agency shall pay Complainant the lump sum of $140,000 by electronic transfer to Complainant's bank account in which she receives regular salary by electronic deposit....
18. The Parties agree that should the Agency fail to carry out its obligations as set forth in this Agreement for any reason not attributed to acts or conduct by Complainant, the provisions outlined in 29 C.F.R. � 1614.504 shall govern the settled EEO complaint....
23. Age Discrimination in Employment Waiver:
g. Complainant has seven (7) calendar days following her execution of this Agreement to revoke the Agreement. Accordingly, this Agreement shall become effective when signed and dated by all the individuals identified on the signature page, below, [which included Complainant's attorney] and after seven (7) calendar days following execution by Complainant;
28. This Agreement shall become effective as of the date the agreement is signed by all parties after expiration of the revocation period as outlined in Paragraph 23 of this Agreement.
Complainant signed the settlement agreement on December 21, 2012, and provided the signature page to the Mediator, who took on the role of coordinating the receipt of signatures, on December 26, 2012. Complainant's attorney sent an email to the Mediator and the Agency on December 28, 2012, advising she approved the settlement agreement as executed by her client on December 21, 2012, and would execute the settlement agreement on January 7, 2013, upon her return to the office. On December 28, 2012, the Mediator advised the Agency that the seven day revocation period ended that day, and recommended that based on Complainant's attorney's representation it should make payment before the end of the year in accordance with the settlement agreement.
The Agency avers that on Friday, December 28, 2012, it put in for payment of the $140,000 to the Department of the Treasury, but because it was a Friday Treasury processed the payment the next business day of Monday, December 31, 2012, and disbursed the funds to Complainant's account the next business day, January 2, 2013.
Complainant's attorney signed the settlement agreement on January 7, 2013, and provided the signed signature page to the Agency the same day.
Thereafter, Complainant's attorney wrote the Agency asking when Complainant would receive her completed tax form 1099 showing payment was made in 2012. After she realized sometime around late February 2013 that no 1099 was forthcoming because the Agency and/or Treasury did not characterize the payment as having been made in 2012, Complainant's attorney submitted a notice of breach to the Agency on March 8, 2013.1
In her allegations of breach Complainant alleged that the Agency breached the settlement agreement when it did not pay her the $140,000 prior to the close of business on December 31, 2012. She wrote that her bank confirmed receipt of the deposit on January 2, 2013, and that by the terms of the settlement agreement the parties agreed time was of the essence. She contended that because of the late payment she would incur a heightened tax liability, albeit the sum was difficult to quantify. Complainant wrote that because this uncertainty could not be finalized until the conclusion of 2013, she was requesting $40,000 in liquidated damages, as well as attorney fees of $5,000, or she would consider having her complaint reinstated.
In its May 20, 2013 FAD, the Agency found that Complainant did not timely submit her allegations of breach. It reasoned that the payment of $140,000 was made on January 2, 2013, but Complainant did not submit her allegations of breach until March 8, 2013, beyond the 30 day deadline. 29 C.F.R. � 1614.504(a).
The Agency found that even if Complainant's breach claim was timely, it substantially complied with term 6 of the settlement agreement. Citing Higgins v. Department of Veterans Affairs, EEOC Appeal No. 0120101371 (May 24, 2011), it found that time is not ordinarily of the essence in a contract unless made so by express stipulation or there is something connected with the purpose of the contract and circumstances surrounding it which makes it apparent that the contracting parties intended the contract must be performed at or within the time named. It found time was not of the essence, and making payment on January 2, 2013, constituted substantial compliance.
Next, the Agency found that any alleged non-compliance with the terms of the settlement agreement was attributable to Complainant's counsel because she did not approve the terms of the settlement agreement until December 28, 2012, leaving insufficient time to make payment by December 31, 2012. The Agency also found that by the terms of the settlement agreement it was not effective until Complainant's attorney executed it, and she did not do so until January 7, 2013. Accordingly, it suggested payment prior to that date was not a breach.
On appeal, Complainant argues that she timely submitted her allegations of breach to the Agency. Complainant argues that time was of the essence. In support thereof, she cites McVeigh v. Secretary of Veterans Affairs, EEOC Appeal No. 01A33893 (Jan. 9, 2004)(language in a December 30, 2002, settlement agreement that payment of $75,000 "is to be made no later than" December 31, 2002, indicates time was of the essence. While payment on January 3, 2003, constituted a breach, it was harmless because Complainant did not show he incurred tax consequences as a result, in part because the settlement agreement provided this payment a non-taxable award, albeit this could not be guaranteed. Accordingly, the settlement agreement was upheld and no remedy was ordered). Complainant argues that she as a result of the late payment, she will have higher tax liability. Complainant also argues that because her attorney was not a party to the settlement agreement, her signature was immaterial to its implementation, and the Agency's actions reflect that reality.
In opposition to the appeal the Agency argues that the FAD was correctly decided.
ANALYSIS
As an initial matter we find that Complainant timely submitted her allegations of breach to the Agency. While we find that it more likely than not that soon after she received the $140,000 on January 2, 2013, Complainant was aware the payment was made, she did not learn until late February or early March 2013 that the Agency did not characterize the payment as having been made in 2012 for tax purposes, as evidenced by not receiving a 2012 1099 for the payment. Given these circumstances, we find that Complainant timely submitted her notice of breach allegations, or provided sufficient equitable reasons for an extension. 29. C.F.R. � 1614.604(c).
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 Agency complied with the settlement agreement, both substantially and otherwise. Our reading of the settlement agreement does not show it indicated time was of the essence. It does not contain "is to be made no later than" language like McVeigh. Moreover, the settlement agreement in Higgins, a more recent case, contained "no later than" payment language, and time was not found to be of the essence. We find that a payment just days after December 31, 2012, was substantial compliance with term 6. Moreover, Complainant's attorney did not execute the settlement agreement until January 7, 2013. The settlement agreement was not effective, according to term 23 thereof, until that date. For this reason, we do not construe the Treasury's payment on January 2, 2013 to be late.
The FAD is AFFIRMED.
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
September 13, 2013
__________________
Date
1 According to Complainant's attorney, in response to her email to the Agency representative about the 1099, the representative advised by email on March 4, 2013, that the Agency did not fund the Settlement Agreement before the close of business on December 31, 2013.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120132079
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120132079