0120143165
02-05-2016
Erich B.,1 Complainant, v. Dr. Ernest Moniz, Secretary, Department of Energy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Erich B.,1
Complainant,
v.
Dr. Ernest Moniz,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120143165
Agency No. 100107SRO
DECISION
Complainant filed a timely appeal with this Commission from an August 22, 2014 final decision (FAD) by the Agency, 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 Contractor Industrial Relations Specialist at the Agency's Savannah River Operations facility in Aiken, South Carolina.
On October 22, 2010, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(2) [Complainant] enters into this Agreement in consideration for the commitment of DOE-SR, evidenced by the signature of the DOE-SR, Deputy Manager, to take the following actions:
(iii) Restoration of 240 hours of sick leave.
(3) Complainant voluntarily agrees to retire from Federal Service not later than October 31, 2010.
The Agreement was signed on October 22, 2010. Consistent with the terms of the Agreement, Complainant agreed to dismiss his EEO complaint and voluntarily retire from the Agency. Complainant retired on October 31, 2010.
This Agreement also stated, in an unnumbered paragraph, that this Agreement "incorporates the informal, hand-written Settlement Agreement signed by the parties on October 15, 2010, and constitutes the full agreement in settlement of the above referenced EEO complainant and MSPB appeal of [Complainant]. There is no other agreement between the parties, either expressed or implied, oral or written."
The Agreement required the Agency to restore 240 hours of sick leave. The record does not show that the Agency met its commitment as stated at (2) (iii) restoration of leave.
At the time of Complainant's retirement, Complainant had 98.5 hours of accrued annual leave "vacation" [annual] leave on Time and Attendance (T& A). The Agency mistakenly issued Complainant a lump sum payment in the amount of $5,323.92. The Agency does not dispute that the lump sum payment of annual leave was made by DFAS (DOE's payroll provider) in error. On October 18, 2011, the Agency issued an invoice to Complainant, advising him that he was required to make immediate restitution.
It also paid Complainant less than 240 hours and computed the "Sick leave" based on a rate of $54.05 an hour, which it said was added to his pension. Record, Exhibit 3. On October 23, 2011, Complainant sent a letter to the DOE-SR payroll office, saying he was being harassed and he challenged the Agency's erroneous billing and its failure to restore the 240 hours.
Within one month of discovering that the Agency had erroneously collected against Complainant, Complainant's former counsel contacted the Treasury and the Agency to correct the error, and requested that the Agency comply by providing him with the full 240 hours of restored sick leave. He and his counsel were in communication with the Agency's Chief Counsel.
On July 31, 2013, Chief Counsel responded to a letter, dated June 18, 2013, from Complainant's counsel. The Chief Counsel acknowledged that "the Settlement Agreement of October 2010 required the restoration of 240 hours of sick leave," but the Chief Counsel stated that Complainant "was not entitled to the payment sent to him for 98.5 hours of annual leave." The Chief Counsel stated that Complainant instead "received credit for 120 hours of sick leave in his service computation, which increased his retirement benefit." She stated that "DOE has no further obligations with respect to that Agreement" and that DOE had referred this matter to the Treasury for collection.
Because of an admitted Agency error, Complainant was paid for 98.5 hours of annual leave ($5,323.92), rather than 240 hours of sick leave, and then had his pension docked after the Agency forwarded the matter to Treasury for collection and continued to dispute Complainant's entitlement to the 240 hours of restored sick leave. The Agency believed that he was entitled to only 50% of his restored sick leave or 120 hours. The Agency told Complainant that since Complainant had retired, DOE-SR instructed Complainant to contact the OPM regarding the noncompliance and Treasury debt collection.
The Office of Personnel Management informed Complainant that "no sick leave was used in the computation of [his] retirement." On August 22, 2013, Complainant's Counsel again requested that the Agency vacate the erroneous billing against Complainant, refund the erroneously deducted monies, and tender the full balance of the 240 hours of sick leave.
By letter of September 12, 2013, Complainant's counsel informed the Agency that the OPM confirmed that Complainant's sick leave was not applied to his retirement / service benefits. Record, Exhibit 13. On December 23, 2013, Complainant filed a petition for enforcement (PFE) with the MSPB alleging breach of the Settlement Agreement.
On January 28, 2014, the Agency requested Complainant's personnel files from OPM. Record, Exhibit 22. On February 11, 2014, the Agency's Senior Advisor for Environmental Management wrote Complainant to inform Complainant that the DOE had elected to waive Complainant's debt to DOE. DOE contacted Treasury to make arrangements for a refund to the Complainant. In addition, according to the Agency's brief on appeal, the Agency DOE contacted OPM to advise Complainant that 70.5 hours should be credited to Complainant's time in service computation.
By letter to the Agency dated March 20, 2014, Complainant's attorney again notified the Agency that it was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to restore 240 hours of sick leave. See Record, Exhibit 23, Letter from Attorney Nguyen. (There was no agreement by Complainant to convert the restoration of sick leave into a credit for any pension. Complainant's 240 hours of sick leave were not used in the calculation of his retirement benefits and were not applied or credited to other benefits.)
On March 27, 2014, DOE-SR submitted an "Urgent Request" to OPM to correct the error regarding the 240 hours of sick leave and the recalculation of retirement benefits. On that same day, DOE-SR submitted a corrected "Urgent Request to OPM" with a summary of leave data, which indicated that Complainant had a balance of 141.50 hours at the time he retired. Record, Exhibit 25.
Agency Decision
In its August 22, 2014 FAD, the Agency concluded that there was no breach of the settlement agreement. The Agency reasoned that it "had taken the steps necessary to ensure compliance with the agreement and had provided the Office of Personnel Management's (OPM) Post Retirement Division with documentation of the restored sick leave to be added to [Complainant's] time in service computation for retirement purposes; therefore, the Agency has taken all actions possible within its authority in implementing the Settlement Agreement."
Next, the Agency found that the Complainant was aware of the breach by December 23, 2013, but it found that Complainant's claim was untimely, because the Agency concluded that Complainant did not allege noncompliance until March 20, 2014.
This appeal followed.
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).
In the instant case, we find that the Agreement was knowing and voluntary and is binding on both parties.
On appeal, Complainant argues that the Agency is indebted to Complainant in the amount of $7,648.08 or 141.50 hours of unrestored sick leave. In addition, Complainant contends that the Agency is indebted to him for the adverse consequences of its non-compliance (restoration of 240 hours of sick leave) as of the effective date of his separation. Complainant included, with his appeal brief, a letter he received from OPM, with an attachment dated September 8, 2014, informing Complainant that his annuity had been "recomputed to reflect 142 hours of sick leave and that his annuity would be increased." Complainant's Appeal, Exhibit A.
In the instant case, the Agency agreed to take the action of restoration of 240 hours of sick leave. The Agreement required that Complainant retire by October 31, 2010. Complainant met all of the obligations under the terms of the Agreement. The Agency, however, had not taken effective actions to restore 240 hours of sick leave until after the filing of Complainant's appeal in this matter.
The Agency concedes that it did not restore the 240 hours of sick leave, as specified in the Agreement, within a reasonable time. We disagree with the Agency's determination that it met its obligations by making a request to DFAS. The Agreement was specific in requiring the restoration of 240 hours of sick leave, not 120 hours and not a credit to Complainant's retirement benefit calculations.
We find that the Complainant was entitled to 240 hours of sick leave as of the date of his retirement and that the Agency had not shown that it met its commitment, consistent with the terms of the Agreement. We further find that the provision of 240 hours of restored sick leave under the Agreement is independent of the lump sum payment of $39,871 and any other benefits to which Complainant was otherwise entitled and which were not waived under the terms of the Agreement.
Further, the Agency's non-compliance set in motion a series of consequences that placed Complainant in a worse financial position, due to a mistake not of his making and due to the settlement agreement. The Agency U.S. Department of Energy Debtor Information for Complainant stated that "the Employee had a negative annual leave balance after adjustments were made to time and attendance due to a settlement agreement." The Agency then took the position in an e-mail dated August 26, 2013, that Complainant had used all of his sick leave prior to October 2010. Despite the requirement to restore 240 hours of sick leave under the settlement agreement, the Agency erroneously paid him for 98.5 hours of accrued vacation (annual) leave, which Complainant had not requested. Then "the system automatically changed" the Annual leave back to sick leave, authorizing less than 240 hours of sick leave, and sought collection thereafter.
We find that the Agency has not met its burden of showing that it complied with the Agreement, consistent with Paragraph 2(iii). We recognize that, after Complainant filed this appeal, the Agency took some steps to remedy the breach. It is unclear whether Complainant has, in fact, received a full restoration. These facts suggest bad faith on the part of the Agency with regard to its delay in curing the breach.
For these reasons, we find that the record supports Complainant's assertion that the Agency breached the Agreement.
Where this Commission finds that a settlement agreement has been breached, as here, the only two remedies available are specific performance of the terms of the agreement or reinstatement of the underlying EEO complaint at the point processing ceased. Complainant seeks specific performance.
Because we find that there was a breach, we also find that Complainant is the prevailing party for this breach claim. As such he is entitled to the recovery of any costs (including attorney's fees, if any) incurred in achieving compliance with the settlement agreement. In addition, the Commission has held that a claim for compensatory damages may be raised at any time in the administrative process up to, and including, the appeal stage, but not thereafter. See Simpkins v. United States Postal Service, EEOC Request No. 0590887 (September 29, 1995). We, therefore, order specific performance in the Order that follows.
Finally, we are not persuaded by the Agency's claim that Complainant's breach claim should not be considered because Complainant was late in submitting his breach claim; after the Agency admittedly failed to timely comply with the terms of the October 2010 Agreement until 2014.
Based on our review of the record and the statements and contentions on appeal, we find that the Agency breached the Agreement.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision and REMAND the matter for action in accordance with the ORDER below.
ORDER
The Agency is ordered to take the following actions:
1. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall restore 240 hours of sick leave, effective as of the date of the date of Complainant's retirement (October 31, 2010), plus interest, to the extent that the Agency has not already done so.
2. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall rescind or cease any further collection against Complainant to get reimbursement of the debts incurred or claimed as a result of the settlement agreement or after October 31, 2010;
3. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall refund to Complainant $4,366.68 for the erroneous collection of the initial $5,323.92 paid for 98.5 hours of "sick leave" and all monies, benefits or reimbursements due to Complainant because of the Agency's failure to comply with the required restoration of 240 hours of sick leave as required by the Agreement.
4. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall take the steps necessary to clear the damage from Complainant's credit rating, if it has not already done so.
5. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
ATTORNEY'S FEES (H0610)
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 (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 (M0815)
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), Chap. 9 � VII.B (Aug. 5, 2015). 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
February 5, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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