0120181353
06-28-2018
Isis S,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Isis S,1
Complainant,
v.
Peter O'Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120181353
Agency No. 200I05082010103573
EEOC Hearing No. 410-2011-00274X
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) following Complainant's receipt of a communication by the Agency dated February 1, 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. We accept this as an appeal from that determination.
BACKGROUND
At the time of events giving rise to this compliance action, Complainant worked as a Utilization Management Analyst at the Agency's VA Medical Center facility in Decatur, Georgia.
On February 10, 2012, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(1) The Agency will review Complainant's leave and earnings records from 2006 - 2010 to determine whether she received the pay and leave to which she may have been entitled under the provisions of USERRA (38 U.S.C. �� 4301 et seq.). To the extent that Complainant has not received pay or leave to which she was statutorily entitled under USERRA, the Agency will initiate any steps or paperwork required of the Agency to effectuate said entitlements;
(2) All parties agree that this Agreement is for settlement purposes only, in accordance with 29 C.F.R. � 1614.603;
(3) This agreement contains all the final terms of the settlement between the Agency and Complainant, including attorney fees (if any); and
(5) This three-page Settlement Agreement constitutes the entire understanding between the parties; and there are no other terms or commitments, verbal or written.
By letters to the Agency dated June 21, 2017, July 17, 2017, September 18, 2017, and December 6, 2017, Complainant alleged that the Agency was in breach of the settlement agreement, and she requested that the Agency specifically implement its terms. The Agency engaged in verbal communication, but the Agency did not issue a determination. Instead, the Agency offered to meet with Complainant and her Counsel to discuss the issues, but on the condition that Complainant sign a new Agreement. Complainant then filed directly with the Commission on the February 1, 2018 communication from the Agency.
In its February 1, 2018 communication, the Agency concluded that it complied with the terms of the Agreement and that Complainant received the required leave and pay.
CONTENTIONS ON APPEAL
Complainant petitions for enforcement of the Agreement contending that the Agency failed to provide her with all of her military pay and holiday pay because it erroneously calculated the monies due.
In response, the Agency argues that her appeal is premature, because the Agency did not issue a final decision. In addition, the Agency stated that it complied with the terms of the Agreement because it reviewed her pay records and paid her the amount it found was due to her, consistent with the Agreement.
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).
We find the Agreement is valid and binding on both parties. We also find that the EEOC has jurisdiction to enforce the terms of the Agreement. Although the provision at issue pertains to USERRA, the underlying claim was a Title VII employment discrimination claim.
In the instant case, the Agreement required the Agency to review Complainant's leave and earning records from 2006 to 2010 to determine whether she received the pay and leave to which she was entitled under the provisions of USERRA and to initiate any steps or paperwork required "to effectuate such entitlements."
The Agreement did not specifically reference 5 U.S.C. Section 6323(b), upon which Complainant relies to claim that she should have been eligible for an additional 22 workdays of military leave and for holiday pay. The Agreement only expressly referenced 38 U.S.C. 4301 et seq. The Agreement did not address this situation where the Parties disagree as to whether other provisions should govern in determining the amount due to Complainant or whether Complainant received all of the pay to which she may have been entitled for her service as a reservist or while performing military duty.
The record shows that the Agency did review her records and provided sufficient documentation of its review. Attachment 4 details the hours paid. The review concluded that Complainant was not entitled to additional pay under USERRA.
For these reasons, we find that Complainant did not show that the Agency breached the terms of this Agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's determination that it did not breach the Agreement.
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
June 28, 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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