0120073462
11-19-2009
James E. Mabry, Complainant, v. Shaun Donovan Department of Housing Urban Development, Agency.
James E. Mabry,
Complainant,
v.
Shaun Donovan
Department of Housing Urban Development,
Agency.
Appeal No. 0120073462
Agency No. 05086
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated February 20, 2007, finding that it
was in compliance with the terms of the February 20, 2007 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.
The settlement agreement provided, in pertinent part, that:
(2) Complainant will receive all back pay associated with the
promotion and any appropriate adjustments to his retirement annuity.
The agreement was executed by the agency on February 20, 2007.
The agreement required that each party complete their respective
obligations within 60-days of its execution.
By a letter to the agency dated April 23, 2007, complainant alleged that
the agency was in breach of the settlement agreement, as it had failed to
implement the above provision within 60 days of its execution. On June 4,
2007, the agency released funds to complainant totaling $10,140.26.
On appeal, complainant contends that: (1) the agency did not correctly
calculate his back pay when it did not account for wage variations in
the pay rate within the fiscal years 2004 and 2005; and (2) and the
agency improperly calculated 8.5 pay periods for the fiscal year 2005
to determine the difference in pay owed to him; whereas complainant
contends he actually worked 12.5 pay periods and was entitled to the
additional 4.5 pay periods that the agency omitted.
In its appeal brief dated June 15, 2005, the agency contends that it
has acted in good faith and substantially complied with all the terms
of the settlement agreement. Specifically, the agency argues that it
correctly calculated backpay owed to complainant under the terms of the
settlement agreement. To this end, the agency maintains that all backpay
calculations were conducted according to Office of Personnel Management
pay scales for the applicable Denver-Boulder-Greeley, Colorado locality.
Moreover, the agency contends that the calculations were performed by
a compensation expert, which was then checked for accuracy.
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 O 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).
With regard to contention (1), we find that the record indicates
that the agency correctly calculated the applicable wage rate for
fiscal years 2004 and 2005. The agency appointed an expert, who, in
her declaration, testified that her calculations were based on OPM
scales for the applicable locality. On appeal, complainant offers no
persuasive evidence to refute said expert's testimony. Accordingly,
we find no breach regarding complainant's contention that the agency
did not accurately account for wage variations within the fiscal year.
With respect to contention (2), upon review, we find that the agency
breached the terms of the settlement agreement when it miscalculated
the amount of backpay due to complainant. For the fiscal year 2005,
the agency calculated backpay for 8.5 pay periods, a total of 680 hours,
which equaled $2,652.00. The agency contends that complainant retired
mid-way through July 2005. However, as established by payroll evidence
submitted by complainant, we find that complainant actually worked mid-way
through pay period 13 and was entitled to backpay for 12.5 pay periods,
equaling an additional 360 hours. Accordingly, as of June 9, 2007,
the date of complainant's appeal, the agency had not fully complied
with the monetary provisions of the settlement agreement. Therefore,
we find that the agency breached the settlement agreement, as it has
not shown that it complied with provision (2) of the agreement.
CONCLUSION
Accordingly, the matter is REMANDED to the agency for further action to
be taken in accordance with the Order listed herein.
ORDER
Within 60 days of the date this decision becomes final, the agency shall:
Calculate the additional amount of back pay and interest that are owed
to complainant, and issue a check to him for that sum. The agency shall
provide complainant with specific evidence documenting how it determined
the additional back pay and interest.
The agency shall provide documentation evidencing implementation of this
order to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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 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 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____11/19/09_________
Date
2
0120073462
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120073462