0120181223
07-26-2018
Hulda W.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hulda W.,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120181223
Agency No. IRS150974
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated January 25, 2018, 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 compliance action, Complainant worked as a Lead Contact Representative at the Agency's IRS Wage and Investment Services Center facility in Pittsburgh, Pennsylvania.
On February 24, 2015, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(1b) Upon signing this agreement, the Director, Philadelphia Accounts Management, agrees to initiate the necessary process to conduct Prevention of Sexual Harassment (POSH) and Reporting Allegations of Sexual Harassment (RAOSH) training to all management and management officials in Philadelphia Accounts Management, Operations 3, by March 31, 2015;
(1e) Upon signing of this agreement, the Agency agrees to provide the Aggrieved with Pay Retention equivalent to her former position as a Supervisory Contact Representative, IR-0962-7, as specified in the Code of Federal Regulations, 5 CFR 536, Grade and Pay Retention, and Internal Revenue Manual, IRM 6.536.1, Grade and Pay Retention; and
(5) This agreement constitutes the complete understanding of the parties. No other promises are binding unless they are in writing and signed by the parties.
The record shows that effective October 29, 2017, Complainant came off of a temporary promotion and reverted back to her home position of record. She retained her rate of pay.
By letter to the Agency dated November 27, 2017, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency either implement its terms or reinstate her complaint for further processing. Specifically, Complainant alleged that the Agency failed to honor the commitment to provide her with pay retention and failed to conduct sufficient sexual harassment training to all management employees and management officials.
The Agency concluded that it did not breach the Agreement. The Agency reasoned that Complainant received pay retention, which meant that her salary was set at the "retained rate of her IR-0692-07 position that she had prior to the Agreement." Her pay retention rate with the appropriate adjustments was $60,655. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant restated her breach claims that the IRS is continuing to pay her less than the pay retained salary outlined in Term E of the Agreement. She also stated that the IRS reduced her salary in 2017, after the Agency asserted that an error occurred in 2011 which resulted in an overpayment and that correcting that error would result in a lower salary from 2011 forward. In addition, Complainant asserted that the Agency targeted her for a comprehensive pay audit "as part of on-going targeting of her [because of] her report of a senior manager's sexual harassment."
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, the Agreement required that the Agency conduct sex harassment training for all management employees. The Agreement did not specify the content of the training. The record shows that the Agency conducted the training and the issue was addressed in an earlier appeal.
Next, the Agency agreed to provide Complainant with pay retention. The record identifies the steps the Agency took to maintain pay retention. The retained rate of pay was $60,060 (after the corrections were made to her account). She received pay retention, plus 50% increase of the general pay adjustment. The calculation was based on the Pittsburgh locality scale. The Agency asserts that Complainant is actually seeking grade retention, but the Agreement did not require grade retention. The record shows that the Agency provided the requisite pay retention. Complainant did not show any error regarding the calculations. For these reasons, we find that Complainant did not show that the Agency breached the Agreement.
To the extent that Complainant wishes to raise any new claims, she should contact an EEO Counselor to raise those claims.
CONCLUSION
Accordingly, we AFFIRM the Agency's Breach Determination, finding no breach.
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 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. 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
July 26, 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.
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