0120180678
04-17-2018
Gala B,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gala B,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120180678
Agency No. HS11FEMA00076
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision by the Agency, dated November 30, 2017, 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; .405, .504(b).
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as a Public Assistance Senior Specialist, GS-13, at an Agency Office in Chicago, Illinois. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. Subsequently, Complainant filed an EEO complaint and the Agency investigated the matter. Following the EEO investigation, the Agency informed Complainant of the right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant requested the former.
On July 7, 20172, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part:
III. AGENCY COMMITMENTS:
A. The Agency agrees to make a cash payment to Complainant, in the amount of $46,111.85 in full and final settlement of Complainant's compensatory damages claims.
B. The Agency agrees to make a lump sum payment to Complainant's representative, [] in the amount of $45,791.44 in full and final settlement of the attorney fees incurred by Complainant.
C. The Agency agrees to provide Complainant with a Quality Step Increase (QSI) from a GS-13, Step 8, to Step 9, retroactive with back pay to Pay Period Four (4) of 2015.
D. The Agency agrees to provide Complainant with a Quality Step Increase (QSI) from a GS-13, Step 9, to Step 10, retroactive with back pay to Pay Period Four (4) of 2016. . . .
F. The Agency also agrees to rescind Complainant's original Fiscal Years (FY) 2010, 2012 and 2013 Annual Performance Appraisals and issue new FY 2010, 2012, and 2013 Annual Performance Appraisals with an overall rating of Superior for FY 2010, 2012 and 2013. The rescinded appraisals will be removed from her Electronic Official Personnel Folder, and any file regarding Complainant maintained by the Agency's Office of the Chief Component Human Capital Office or Complainant's supervisor, and replaced with the new appraisals. These amended appraisals will not be accompanied with, or entitle Complainant to, any retroactive performance awards or bonuses of any kind. . . .
VI. CONFIDENTIALITY:
A. Except as provided herein, the Agency, Complainant, and their respective representatives specifically agree not to disclose the terms and conditions of this Agreement, other than to state that the matter has been resolved. The terms and conditions of this Agreement as well as the facts and claims in the EEO Complaint shall not be disclosed directly or indirectly to any person not directly involved in the implementation of the Agreement. If required by law, regulation, or by order of a court, the terms and conditions of this Agreement may be disclosed to the extent required. The Agency may disclose the terms and conditions of this Agreement to employees of the Equal Employment Opportunity Commission or other Federal government agency who have a need to know the information in the performance of their duties including, but not limited to, facilitating or enforcing the terms of this Agreement or in responding to background investigations into suitability for employment or for a security clearance or access to sensitive information.
Complainant submitted the settlement agreement to the assigned AJ. On July 27, 2017, the AJ issued an Order of Dismissal - Settlement.
Allegations of Noncompliance
By letter to the Agency dated November 6, 2017, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to (1) remit QSI back-pay, interest and related fringe benefits and (2) rescind the original Annual Performance Appraisal for fiscal year (FY) 2010 from the Agency electronic personnel system. Regarding (2), Complainant refers specifically to FY 2010 Performance Appraisal Agency forms 30-60 and 30-65, with a creation date of November 1, 2011 and an effective date of September 30, 2010. Further, Complainant noted that her contentions of noncompliance are for implementation purposes only and should not become a part of her official personnel folder (OPF). Also, Complainant alleged that the replacement appraisals stated, "Per settlement agreement rating is being modified" and that such commentary on the new documents breaches the agreement's non-disclosure requirements.
Final Agency Decision
In its November 30, 2017 final decision, the Agency stated it (1) is awaiting action from the National Finance Center (NFC) to process Complainant's back-pay for two years of step increases and (2) rescinded the FY 2010 performance appraisal from Complainant's electronic OPF on or before November 28, 2017. As to (1), the Agency stated that the settlement agreement does not provide "interest and related fringe benefits" as Complainant alleged in her noncompliance allegation. The Agency stated its Counsel notified Complainant, in an email dated October 20, 2017, of the payment delay due to NFC processing.3 The instant appeal from Complainant followed.
Appellate Stage
On appeal, Complainant reiterated prior contentions. Also, she alleged that the Agency retaliated against her when it issued the replacement FY 2013 Performance Appraisal with commentary about the settlement agreement. Complainant also stated that she did not agree to accept an approximate calculation of QSI back-pay, and that interest and other benefits are inherent to back-pay. Complainant stated that the Agency owes her back-pay through pay period 17 of 2017 and interest continues to accrue until it is paid. Summarily, Complainant requested retroactive gross back-pay with interest (including tax-deferred benefits, contributions to FICA/Social Security, Thrift Savings Plan Basic and Matching), and reimbursement of attorney's fees ($703.19) and other out-of-pocket costs ($123.16) incurred since settlement.
In opposition to Complainant's appeal, the Agency stated that, on January 10, 2018, NFC paid Complainant $14,593.89 for retroactive pay of QSIs for 2015 through 2017, pursuant to Sections C. and D. of the settlement agreement. The Agency stated that the NFC payment included contributions to social security, retirement, and life insurance. The Agency stated that the QSI payment required complicated computations that had to be done manually, which led to delay. The Agency stated that it kept Complainant abreast of QSI payment processing. The Agency stated that Complainant is not entitled to attorney's fees, noting she no longer has legal representation. The Agency stated the agreement does not include interest and fringe benefits, and that Complainant has been continuously employed with the Agency and has received all employee benefits to which she was entitled.
The record contains the documentation indicated below.
1. An email, dated October 20, 2017, from Agency Counsel to Complainant, stating that the payroll system should have automatically calculated her retroactive QSI payments following her last QSI increase, but that did not occur. The email stated that Agency payroll had to manually calculate the retroactive amount and submit to NFC for payment. The email added that there were concerns about double payment that they wanted to avoid. Also, the email stated that the Agency had to provide comments on a form attached to the FY 2013 appraisal because the rating was "superior," but they changed the comments following Complainant's request.
2. Special Payroll Processing System (SPPS) Adjustment for Complainant, dated January 17, 2018, indicating Gross Payment $14,593.89, Federal Tax $3,416.73, Life Insurance $228.00, Medicare Tax $211.61, Other Deduction $926.96, Retirement $100.52, Social Security Tax $904.82, State Tax $273.34, with a Net Payment of $8,531.91. The Remarks state "Back Pay Settlement covering PP's 4/2015 thru 17/2017."
3. Spreadsheet comparing Complainant's Regular and Overtime Hours as a GS-13, Step 8 ($54.05 per hour) to what she would have earned as a GS-13, Step 9 ($55.51 per hour) for 26 pay periods in 2015. The spreadsheet reflects a total owed of $3,230.98.
4. Spreadsheet comparing Complainant's Regular and Overtime Hours as a GS-13, Step 8 ($54.74 per hour) to what she would have earned as a GS-13, Step 10 ($57.70 per hour) for 26 pay periods in 2016. The spreadsheet reflects a total owed of $7,360.93.
5. Spreadsheet comparing Complainant's Regular and Overtime Hours as a GS-13, Step 8 ($55.91 per hour) to what she would have earned as a GS-13, Step 10 ($58.93 per hour) for 14 pay periods in 2017. The spreadsheet reflects a total owed of $3,382.40.
6. An email, dated February 5, 2018, from Complainant, stating that she is not represented by an Attorney for the instant appeal.
7. Invoices from Complainant's former Attorney for professional services rendered July 10 - 27, 2017 and October 17 - 18, 2017. The invoices include expenses as well.
8. A Declaration under Penalty of Perjury, dated February 6, 2018, from a Human Resources Specialist (HRS), explaining the payroll process for the retroactive QSI payments. HRS stated that the process included data entry of status changes, review of applicable past time cards and earnings statements, submission to NFC for review and processing, multiple verifications and internal reviews, and correction of errors.
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 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. 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 pertinent part, the settlement agreement signed by both parties, states that Complainant was entitled to (1) a lump sum payment of $45,791.44 to her attorney in full and final settlement of the attorney fees incurred by Complainant, (2) a retroactive QSI from GS-13, Step 8 to GS-13, Step 9 with back pay to pay period four of 2015, (3) a retroactive QSI from a GS-13, Step 9 to GS-13, Step 10 with back pay to pay period four of 2016, (4) rescission of her original FY 2010, 2012 and 2013 annual performance appraisals from her electronic OPF and Human Capital Office and supervisory files, and issuance of new FY 2010, 2012, and 2013 appraisals with an overall rating of "Superior" for each fiscal year.
According to Complainant, the Agency agreed to complete execution of the settlement agreement by October 18, 2017. The Agency stated that the compliance deadline date was October 20, 2017. On appeal, Complainant requested (1) retroactive gross back-pay with interest (including tax-deferred benefits, contributions to FICA/Social Security, Thrift Savings Plan Basic and Matching), and (2) reimbursement of attorney's fees in the amount of $703.19 and other out-of-pocket costs in the amount of $123.16, incurred since settlement.
Retroactive Back-pay, Interest, and Benefits
The record shows that, on January 10, 2018, the Agency (through NFC) paid Complainant retroactive gross pay of $14,593.89 for QSIs from pay period 4 of 2015 through pay period 17 of 2017. The record contains spreadsheets and SPPS Adjustment printouts detailing the calculations, and indicating deductions for federal and state taxes, life insurance, retirement, social security tax, and Medicare. Notably, the Agency payment is almost $620 more than the total for the FY 2015 - FY 2017 QSI spreadsheets in the record. The Agency stated that there was a delay in processing because, after it entered data for Complainant's step increase for September 2018, the payroll system did not automatically calculate the retroactive back-pay as it should have. As a result, Payroll and NFC had to do so manually. The Agency also added that there were multiple levels of verification and internal review to prevent errors and double payment. The Agency provided a Declaration under Penalty of Perjury from a Human Resources Specialist explaining the payment process. Further, the Agency stated that it kept Complainant abreast of payment processing status between October 20, 2017 and January 10, 2018.
Based on the record herein, we find the Agency delay in implementing Provisions III.C and III.D of the settlement agreement not unreasonable. See generally Malladi v. Dep't of Veterans Affairs, EEOC Appeal No. 01961100 (Dec. 18, 1996) (seven-month delay in payment of predetermined amount of attorney fees not unreasonable). Further, we find that "interest and fringe benefits" are not warranted. Interest is not part of the agreement and the Agency operated in "good faith" to process Complainant's retroactive QSI back-pay in a timely manner and without unreasonable delay. See April v. Department of Agriculture, EEOC Appeal No. 01963775 (June 5, 1997); see also Stage v. Department of Labor, EEOC Appeal No. 01973329 (Feb. 9, 1998) (finding that because back-pay was reimbursed within a reasonable time, no interest was due). Complainant worked at the Agency at the same grade, but a lower step, during the relevant period. Complainant did not show that she was entitled to additional benefits or that said benefits are part of the instant agreement.
Post-Settlement Attorney's Fees
The Agency stated that Complainant is not entitled to attorney's fees beyond those provided in paragraph III.B of the agreement. The Agency noted Complainant does not have legal representation at the appellate stage. Complainant stated the Agency must reimburse her attorney's fees of $703.19 and other out-of-pocket costs of $123.16 incurred since settlement. Complainant stated that she would not have incurred such costs if the Agency complied in a timely manner. However, Complainant provided invoices from her former Attorney for professional services rendered July 10 - 27, 2017 and October 17 - 18, 2017, which is before the agreement compliance due date. Further, Complainant stated that she does not have legal representation on appeal. We find that Complainant is not entitled to additional attorney's fees.
General Compliance
On appeal, Complainant requested specific implementation of provisions III.B, III.C, and III.D she deemed outstanding. We find that the Agency has complied with said provisions. Further, to the extent Complainant alleged retaliation by the Agency, allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints. See 29 C.F.R. � 1614.504(c). The Commission will not address the allegation of reprisal in the present appeal.
CONCLUSION
The Commission finds that the Agency's determination that it complied with the settlement agreement was proper. We AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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
April 17, 2018
__________________
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.
2 The most recent legible date of a signature on the settlement agreement is July 7, 2017. The original signature for the Agency Representative was a digital one and, subsequently, Complainant asked the Agency to provide a handwritten signature. The Agency stated that it provided the handwritten signature on July 13 so the effective date of the agreement is seven days later, on July 20, 2017. Complainant stated the effective date of the agreement is July 18, 2017.
3 The record contains an email, dated December 12, 2017, wherein Agency Counsel informed Complainant that the NFC has assigned her case for processing and it is "prioritized."
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