0120101266
06-09-2010
John Kennedy, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
John Kennedy,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101266
Agency No. 2004-0688-2007101424
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated December 22, 2009, finding that it was in
compliance with the terms of a February 11, 2009 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The February 11, 2009 settlement agreement provided, in pertinent part,
that:
1. The agency agrees to retroactively promote the Complainant to the GS-12
level with appropriate step increases, retroactive to January 31, 2005.
Complainant agrees to waive back pay associated with the retroactive
promotion. The agency agrees to pay the agency's and the complainant's
retirement contributions associated with the retroactive promotions.1
By letter to the agency dated August 31, 2009, complainant, through his
attorney, alleged breach of provision 1. Specifically, complainant
alleged that the agency has not yet finished processing his retroactive
promotion for retirement purposes. As a result, he has not yet received
adjusted retirement pay and retroactive retirement pay associated with
the retroactive promotion.
The record reflects that on October 8, 2009, the agency contacted
complainant concerning his breach allegation. At that time, the agency
notified complainant that upon examination of the specific language
in the settlement agreement, there appeared to be a mutual mistake
when the agreement was negotiated. Specifically, the agency notified
complainant that the Office of Personnel Management (OPM) regulations
prevent the agency from complying with provision 1 of the agreement
because complainant cannot waive back pay. The record reflects that
complainant informed the agency that he did not want the February 11,
2009 agreement voided and that he wanted the agreement enforced.
In its December 22, 2009 final decision, the agency found no breach of
provision 1. The agency stated that as early as May 19, 2009, an EEO
Program Manager (PM) monitored compliance with the subject agreement.
The agency stated that on June 19, 2009, complainant's attorney was paid
$5,000 in attorney's fees. The agency stated that a Regional Counsel (RC)
stated that because PM resigned from agency employment in July 2009, she
assumed compliance monitoring. The agency stated that upon RC assuming
compliance monitoring, it was determined that it was impossible for the
agency to comply with the first part of provision 1. The agency stated
that according to OPM regulations, there was no authority permitting the
agency to waive back pay wages. The agency stated that in accordance
with 5 C.F.R. 550.805, "if an employee is due payment from a back
pay/settlement agreement, the agency must compute the net payment due,
including deductions for retirement contributions." The agency stated
that because of the mutual mistake in the subject agreement, the first
part of provision 1 was impossible to perform.
However, the agency stated that in a good faith effort to comply with the
subject agreement and in an effort not to void the agreement, management
agreed not only to pay the agency's and complainant's retirement
contributions but also to pay complainant back pay. The agency stated
that in September 2009, the agency began calculating the amount of back
pay owed to complainant. The agency stated that effective January 31,
2005, complainant was retroactively promoted to the Information Technology
Specialist, GS-12 position; and on November 20, 2009, complainant was
issued a check in the amount of $11,709.76 for the retroactive promotion
and the back pay, which he received on November 24, 2009. Finally,
the agency stated that because the subject agreement did not contain a
specific time limit for compliance and the agency acted in good faith by
not only fulfilling its obligations but also paying complainant back pay,
it has complied with the agreement.
On appeal, complainant, through his attorney, argues that he has not yet
received his retroactive promotion for retroactive retirement pay and
adjusted retirement pay associated with these retroactive promotions.
Complainant further demanded enforcement of the subject agreement as
well as attorney's fees and costs.
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).
In the instant case, we find that the agency complied with a portion of
provision 1, as later amended, when complainant was issued a check for
back pay reflecting his agreed-upon retroactive promotion. The record
contains a copy of U.S. Treasury check issued to complainant in the
amount of $11,709.76 on November 20, 2009 (Check No. 2221 40143804).
We note, however, the record contains insufficient evidence for us
to determine whether a breach of portion of provision 1 has occurred
concerning the processing of the retroactive promotion for retirement
purposes so that complainant receives the appropriate adjusted and
retroactive retirement benefits. The record contains a copy of RC's
e-mail correspondence dated November 24, 2009. Therein, RC acknowledged
that complainant's check in the amount of $11,709.76 for retroactive
promotion and back pay, referenced above, was sent via Fed Express
overnight mail, but that his retirement annuity "will be adjusted and
another check sent to him within the month for that amount." However,
the record contains no affidavits from RC or any management officials
indicating that they purportedly fulfilled the obligations under the
terms of portion of provision 1 of the settlement agreement concerning
processing the retroactive promotion for the purposes of complainant's
adjusted retirement pay. Given this lack of evidence, we are unable to
ascertain whether the agency complied with that portion of provision
1 of the settlement agreement.
Accordingly, the agency's finding of no breach of portion of provision
1 of the settlement agreement, as amended, concerning complainant's
back pay is AFFIRMED. The agency's finding of no breach of portion of
provision 1 of the agreement concerning the processing of the retroactive
promotion for retirement purposes is VACATED. This matter is REMANDED
to the agency for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
The agency shall supplement the record with evidence clearly showing that
it has completed the processing of complainant's retroactive promotion
for retirement purposes in compliance with provision 1 of the settlement
agreement. The supplementation of the record shall include documentation
that complainant has received retroactive and adjusted retirement pay
reflecting the retroactive promotion. Within thirty (30) calendar days
of the date this decision becomes final, the agency shall issue a new
decision concerning whether it breached this portion of provision 1 of
the settlement agreement.
A copy of the agency's new decision must be sent 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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
June 9, 2010
__________________
Date
1 The settlement agreement also provides for the agency to pay
complainant's attorney the amount of $5,000 in attorney's fees and costs.
This provision is not at issue in the instant appeal.
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0120101266
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101266