0120160748
03-11-2016
Janee S.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Janee S.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0120160748
Agency No. N-2015-0195
DECISION
Complainant filed an appeal with this Commission from a final decision (FAD) by the Agency dated November 3, 2015, 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 complaint, Complainant worked as a Food Service Worker at the Agency's Keesler Air Force Base in Biloxi, Mississippi.
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On August 27, 2015, Complainant, her Union Representative, and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1) Management agrees, within thirty (30) calendar days of the date this agreement is signed by all the parties, to pay the Complainant $ 3480.75 (THREE THOUSAND FOUR HUNDERED AND EIGHTY DOLLARS AND SEVENTY-FIVE CENTS) in a lump sum amount. (emphasis in original)
(2) Management agrees, within thirty (30) calendar days of the date this agreement is signed by all the parties, to expunge the Written Reprimand dated August 13, 2015.
By memorandum to the Agency dated September 23, 2015, Complainant alleged that the Agency was in breach of the settlement agreement. Complainant indicated that the signing of the settlement agreement resolved all matters pending before the Agency except for an Inspector General (IG) investigation. She indicated that the IG investigation involved her assertion that the Agency's pay rules were not approved though the Department of Labor and that she was owed additional pay. Complainant asserted that she received notice from the IG that the settlement agreement was worded in such a way that she would not receive compensation following the IG investigation. She claimed that she made sure the settlement agreement did not do this. After speaking with several individuals, including her union representative, Complainant determined that she needed to allege a claim of breach. She argued that the Agency's pay rules resulted in a reduction in her pay by 49.6 hours over four years. Based on her calculations, she was owed $ 718.25 in wages. In sum, Complainant asserted that the settlement agreement was breached based on the IG's claim that she was not entitled to any restoration of pay even if the IG investigation showed that the Agency violated pay rules.
In its November 3, 2015 FAD, the Agency concluded that it had complied with the settlement agreement. The Agency noted that it provided Complainant with a check issued on September 11, 2015, in the amount of $ 3480.75. The Agency also indicated that the Written Reprimand dated August 13, 2015, had been removed from Complainant's Official Personnel Folder. The issues raised in Complainant's claim of breach were not listed or part of the settlement agreement. As such, the Agency determined that it had provided Complainant with the items agreed upon in the settlement agreement. Therefore, the Agency found that it did not breach the August 27, 2015 settlement agreement.
CONTENTIONS ON APPEAL
Complainant filed the instant appeal. On appeal, Complainant asserted she was willing to let the harassment issue be settled if she could proceed with her claim before the IG and receive what is owed to her based on the Agency's failure to properly compensate her. Complainant argued that she has a lot of evidence of her whistleblowing protected activity and that no one is holding the Agency accountable. The Agency requested that the Commission affirm its decision.
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 Agency agreed to provide Complainant with payment in the amount of $ 3480.75 and to remove the Written Reprimand dated August 13, 2015, from Complainant's Official Personnel File. The Agency provided evidence to support its claim that it has complied with both of these provisions of the settlement agreement. Complainant does not challenge the Agency's assertions. Upon review of the record, we find that the Agency has complied with the terms of the settlement agreement. Therefore, we determine that the Agency's final decision appropriately concluded that it did not breach the settlement agreement.
Complainant's claim of breach and her statement on appeal concern the Agency's IG investigation and the remedies that may be available to her following the investigation into Agency's time keeping practices. We note that the settlement agreement is silent regarding the IG investigation. As such, Complainant has not established that the Agency breached the settlement agreement.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's determination finding no breach of the settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), 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, 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 (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
March 11, 2016
__________________
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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