Gayne M. Brenneman, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 22, 2000
01980049 (E.E.O.C. Mar. 22, 2000)

01980049

03-22-2000

Gayne M. Brenneman, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Gayne M. Brenneman v. Department of Veterans Affairs

01980049

March 22, 2000

Gayne M. Brenneman, )

Complainant, )

)

v. ) Appeal No. 01980049

) Agency No. 96-1530

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On August 14, 1997, complainant's representative notified the agency

that it breached an April 11, 1997 settlement agreement. When the

agency failed to respond to complainant's notice within thirty-five

days, complainant appealed her claim of breach to this Commission. The

Commission accepts the timely appeal for review. See 64 Fed. Reg. 37,644,

37,659, 37,660 (1999)(to be codified as EEOC Regulation 29 C.F.R. �

1614.402); 29 C.F.R. � 1614.504(b).<1>

The settlement agreement provided, in pertinent part, that:

(1) The complainant hereby voluntarily resigns from her employment at

the [agency] effective September 1, 1997. . . . The complainant will

be placed in a nonactive duty Leave Without Pay status from April 12,

1997, through September 1, 1997.

. . .

The agency agrees to pay to the complainant full backpay, including

accrued annual leave, but not including interest on the backpay amount,

less all deductions required by law, for the period covering January 28,

1996, through April 11, 1997. The backpay figure will include payment

in full of the complainant's Special Pay through September 1, 1996,

with prorated Special Pay for the period of September 2, 1996 through

April 11, 1997.

. . .

Nothing in this Agreement is intended to constitute an admission

of guilt, fault or wrongdoing by any of the individuals or parties

involved.

In complainant's August 14, 1997 letter alleging breach, she requested

that the agency specifically implement the terms of the agreement.

Complainant alleged that the agency failed to provide her with special

pay as contemplated in the settlement agreement.<2> Complainant argues

that she was only given 50% of the special pay to which she was entitled

for the period of September 2, 1996 through April 11, 1997.

Prior to alleging breach, it appears that complainant requested an

explanation of how her back-pay was calculated. On July 31, 1997,

the agency explained that complainant's special pay was computed in

accordance with the Special Pay Agreement (SPA) she signed with the

agency. The agency noted that complainant's SPA was controlled by an

internal regulation called MP-5. The agency found that complainant was

entitled to 100% of her special pay for the period of January 29, 1996

through August 31, 1996, because she completed the second year of the SPA.

The agency also explained that complainant failed to complete the third

year of the SPA, and thus was entitled to only 50% of the special pay

accrued between September 1, 1996 and April 11, 1997.

On appeal, complainant argues that payment of only 50% of special pay for

September 1, 1996, through April 11, 1997, was a breach of the agreement.

Complainant also contends that the agency breached the agreement by paying

only 50% special pay for her fifty-five days of accrued annual leave.

Complainant argues that since she did not resign until September 1, 1997,

complainant completed her third year of the SPA, and the penalty provision

should not apply to her back-pay calculation. Complainant argues that

the only reason the September 1, 1997 resignation date was included in

the agreement was to exempt complainant from the penalty provision of

the SPA that would apply if she failed to complete the third year under

the contract.

Alternatively, complainant contends that the settlement agreement,

providing for a pro-rata share of the year's special pay from September

1, 1996 through April 11, 1997, preempts the 50% penalty provision of

the SPA and MP-5. Complainant notes that the agreement only provides

for deductions required "by law," and argues that neither the SPA,

nor regulation MP-5, are "law." Further, complainant argues that the

penalty provision should not apply because she did not leave because

of misconduct, and she did not "voluntarily" resign. Complainant also

contends that the term "prorated Special Pay" in the settlement agreement

refers to a calculation of the full special pay amount divided by

the portion of the year she served in pay status under the agreement.

She argues that the prorated amount was never intended to apply the

penalty provisions to reduce her special pay by 50%. Complainant notes

that the agency refused to admit wrongdoing in the settlement agreement,

but contends that the settlement agreement, by its existence, should be

regarded as evidence that complainant was subjected to an "unwarranted

personnel action" prompting her resignation. Therefore, complainant

argues that she should receive full special pay.

Complainant attached a chart to her appeal outlining her pay and accrued

leave by pay period. The chart breaks down complainant's $61,000

per annum special pay by pay check (two week periods), and shows that

complainant had eighteen days of accrued annual leave on January 28,

1996, a total of thirty-six days by September 1, 1996, and fifty-five

days as of April 11, 1997.

Complainant also attached a copy of the SPA, dated September 1, 1994.

It provides, in relevant part:

[I]n the event complainant voluntarily or because of misconduct fail[s]

to complete any of the year(s) of service (measured from the anniversary

date of [this] agreement) which entitles [complainant] to Special Pay,

[complainant] will refund the specified percentage of Special Pay

[complainant has] received that year. . . . The specified percentages

are: (b) 75 percent of the special pay received in the second year if

the failure occurs during that year; (c) 50 percent of the special pay

received in the third year if the failure occurs during that year. . . .

[Complainant] acknowledge[s] that the regulations in MP-5 . . . are

incorporated into and made a part of the agreement and [complainant has]

read a copy of those regulations.

On October 10, 1997, the agency answered complainant's claim of breach.

The agency argued that it had not breached the agreement, because

complainant was only entitled to 50% of her Special Pay for September 1,

1996 through April 11, 1997. The agency noted that the SPA provided for

a penalty on pay given during the year (measured from the anniversary

date of the SPA), and that leave without pay did not count towards

earning credit to overcome the penalty provision, but only postponed

the obligation for a full year of service.

Regarding the purpose and significance of dates negotiated in the

settlement agreement, the agency notes that complainant was removed from

the agency for misconduct on January 28, 1996. Pursuant to the SPA,

complainant had to repay 75% of the special pay earned during her second

year, because complainant did not finish the year. Complainant filed

a formal complaint regarding her termination and bill for repayment,

which was settled in the April 12, 1997 agreement. The agency argues

that the settlement agreement gave complainant the complete second year

of special pay (up to August 31, 1996), in order to absolve complainant

of her over $15,000 debt for special pay repayment. Further, the agency

argues that complainant expressed the intent to have a September 1,

1997 resignation date so that she would not have a break-in-service.

The agency claims that her intent for complete payment of special pay

was not expressed to the agency, and was not authorized pursuant to the

SPA or MP-5. The agency failed to address the payment of special pay

with respect to accrued annual leave.

The record includes a copy of Regulation MP-5. Under this agency

regulation, "payment of special pay will not be authorized for periods of

leave without pay or absence without leave." MP-5, Part II, Ch. 3, Change

1, para 16(a). Further, the MP-5 provides that, "[p]hysicians . . . on

Leave Without Pay (LWOP) retain their employee status. However, time

spent in LWOP does not diminish the individual's service obligation under

a SPA. Physicians . . . who enter special pay agreements and subsequently

go into a LWOP status merely postpone their service obligation to [the

agency] under the terms of their agreement during the period of LWOP."

MP-5, Part II, Ch. 3, Change 1, para (10).

ANALYSIS AND FINDINGS

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

referred to as 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 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).

In the instant case, complainant's intent to receive full special

pay for the period from September 1, 1996 through April 11, 1997,

was not expressed in the contract. Consequently, in the absence

of particular language or of other evidence establishing that the

parties clearly intended to ascribe a particular meaning to the term

"special pay" other than its ordinarily accepted meaning, we construe

"special pay" in the context of this agreement to be consistent with the

definition/calculations specified in the SPA and corresponding MP-5.

See Johnson v. USPS, EEOC Request No. 05900663 (August 27, 1990).

Consequently, the Commission finds that the intent of the parties with

regard to "special pay" was to pay complainant what she would have

received had she worked until April 11, 1997 and then taken LWOP until

resigning on September 1, 1997. If complainant had worked on those dates,

absent the settlement agreement, she would be entitled to 100% of her

special pay from January 28, 1996 until August 31, 1996 (as outlined in

the settlement agreement), and 50% of her special pay for work performed

from September 1, 1996 through April 11, 1997. Therefore, the agency's

application of special pay procedures to disqualify complainant from

50% of her special pay for September 1, 1996 through April 11, 1997

was proper.

With respect to annual leave, complainant contends without contradiction

that she received only 50%of her special pay in repayment for all of her

annual leave. The amount of special pay given for accrued annual leave,

as with special pay given for regular back-pay, must take into account

the date on which the leave accrued. Therefore, the Commission finds that

complainant is entitled to 100% of her special pay for the thirty-six

days of annual leave accrued before September 1, 1996. The remaining

nineteen days of leave, however, were accrued in complainant's incomplete

third year of service, and complainant is only entitled to 50% of her

special pay for that leave.

CONCLUSION

Accordingly, the agency's finding of no breach with respect to the payment

of special pay for annual leave accrued prior to September 1, 1996 is

REVERSED, and the claim is REMANDED for specific implementation of the

April 12, 1997 settlement agreement. The agency's findings of no breach

with respect to back pay and annual leave accrued between September 1,

1996 and April 11, 1997 is AFFIRMED.

ORDER

The agency is ORDERED to provide complainant with 100% of her special

pay for leave accrued prior to September 1, 1996. Since the agency has

paid complainant 50% of her special pay for all annual leave, the agency

shall tender a check to complainant for the remaining 50% of her special

pay for all leave accrued prior to September 1, 1996 (thirty-six days).

With tender of the check, the agency also shall provide complainant an

explanation of the calculations made to determine the amount of payment

due. The check and explanation must be sent to complainant within

forty-five (45) calendar days of the date this decision becomes final.

Additionally, the agency must provide a copy of the explanation to the

Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (T1199)

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:

March 22, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date

1On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at WWW.EEOC.GOV.

2"Special Pay" is a sum given in addition to employees' regular GS pay

scale in recognition of their special skills or specialties, in order

to hire individuals who otherwise would obtain much larger salaries in

the private sector. In the VA, special pay is governed by contracts

signed by the employee and agency officials. Complainant is a board

certified Cardiac Anesthesiologist, and signed a "Special Pay Agreement"

on September 1, 1994.