0120101588
07-13-2010
Janice D. Jones,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120101588
Agency No. 9V1M09116
DECISION
Complainant filed a timely appeal with this Commission after notifying
the Agency of her allegation that it was not in compliance with the
terms of the September 24, 2009 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 Agency subsequently issued a Decision
dated March 11, 2010 finding that it had not breached the Agreement.
BACKGROUND
The settlement agreement provided, in pertinent part, that the Agency
agreed:
(1) To restore all sick leave used during the period 23 Oct 2008
through 24 Sep 2009;
(2) Complainant will be able to earn Credit Hours beginning Pay
Period 11 Oct 2009. If it is determined by the Agency that the Credit
Hour process is being abused, Complainant will become immediately exempt
from earning Credit Hours
By an email to the Agency dated December 15, 2009 and in subsequent
emails, Complainant alleged that the Agency was in breach of the
settlement agreement, and requested that the Agency specifically
implement its terms. Complainant produced a November 7. 2009 letter
from the Defense Finance and Accounting Service (DFAS) stating that
an overpayment had been created in her pay account and notifying her
that she must repay $1,648.34. Complainant's specific allegation to the
Agency was that instead of restoring her sick leave, as per the Agreement,
the Agency had awarded her money, which then put in her in debt to DFAS.
Complainant further alleged that the agency failed to restore 174 hours
of sick leave.
In its March 11, 2010 Decision, the Agency concluded that in October 2009,
complainant's sick leave had been changed to Leave Without Pay (LWOP)
and that her sick leave had been restored, but acknowledged that this
action had caused a debt for complainant. The Agency further noted that
"[a]fter being aware of the debt, the agency generated another action on
or about 17 Nov 2009, to place you in a duty status during the period of
absence to be able to correct your time and attendance record to assure
you do not incur a debt. Additionally on 4 Jan 2009, the agency provided
documentation to show they were following up to ensure the changes are
made and will continue to do so until final action is taken by DFAS."
On appeal, complainant states in a brief dated February 8, 2010, that
the Agency's action was intentional and caused her emotional and physical
distress as well as placing her in debt. See Complainant's Appeal Brief,
p. 2. In addition, complainant alleges that the agency "refused to
correct the problem." Id. In its response brief, dated April 20, 2010,
the Agency argues that, while an error occurred, "corrective action was
promptly taken, as well as action to ensure the complainant did not suffer
any financial harm due to the unfortunate payroll system error. The error
has now been corrected. The complainant's leave balances include the
restored leave, and the accounting errors have been corrected, so that
there is no employee debt associated with the agreement." Agency Brief,
p. 3. In addition, the Agency argues that complainant was only entitled
to restoration of approximately 104 hours of leave, not the 174 hours
she claims. See id.
ANALYSIS AND FINDINGS
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 restore complainant's sick
leave. Upon review, we are unable to determine whether the Agency complied
with the terms of the agreement because the record is inadequately
developed. While the Agency has provided documentation purporting to
show that complainant's leave balance has been fully restored, such
documentation is unclear and indecipherable to someone not familiar
with the Agency's method of recording employee leave usage and balances.
In addition, the record does not contain any affidavits from management
officials fully explaining the Agency's actions under the settlement
agreement. Because of the deficiencies in the record, we are unable to
ascertain whether the Agency complied with the settlement agreement.
Accordingly, we VACATE the final decision and REMAND this matter to
the agency for a supplemental investigation and further processing in
accordance with this decision and the ORDER below
ORDER
The Agency is ORDERED to undertake the following actions:
1. The Agency shall supplement the record with affidavits and
other documentary evidence that reveal whether it complied with the
provisions of the September 24, 2009 settlement agreement. Specifically,
the Agency shall supplement the record with evidence that reveals in
layman's terms how much leave complainant was entitled to have restored
under the agreement. Further, the Agency shall supplement the record
with documentation that explains in detail how it allegedly negated
complainant's debt with DFAS. Finally, the Agency shall supplement the
record with affidavits from pertinent Agency officials specifically
addressing complainant's breach claim and clearly explaining any
documentation in the record that is pertinent to complainant's breach
claim. Complainant shall comply with the Agency's request for information
pertinent to its compliance with the terms of the settlement agreement.
Complainant will be provided a copy of the agency's supplemental
investigation and will be given the opportunity to provide a statement
and/or other evidence.
2. Within ninety (90) calendar days from the date this decision becomes
final, the Agency shall issue a new determination that fully explains
whether it breached the settlement agreement. The Agency shall provide
complainant with appeal rights to the Commission.
3. A copy of the Agency's new determination regarding compliance with the
settlement agreement must be sent to the Compliance Officer referenced
below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 (M0610)
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 (R0610)
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 (Z0610)
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
July 13, 2010
__________________
Date
2
0120101588
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101588