0120170937
06-12-2018
Ludie M.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ludie M.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120170937
Agency No. ARJACKSON13FEB00583
EEOC Hearing No. 430201300394X
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated December 23, 2016, 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 compliance action, Complainant worked as a Medical Technologist, GS-0644-09 at the Agency's Montcrief Army Community Hospital, Fort Jackson facility in Fort Jackson, South Carolina.
On January 15, 2016, Complainant and the Agency entered into a settlement agreement to resolve the above referenced EEO matter. The settlement agreement provided, in pertinent part, that the Army agrees to:
3.(a) Restore Complainant 275 hours of sick leave;
(b) Restore Complainant 205 hours of annual leave; and
(c) Pay $2,500.00 in attorney fees to American Federation of Government Employees (AFGE) Legal Fund.
By letter to the Agency dated April 1, 2016, Complainant alleged that the Agency was in breach of the January 15, 2016 settlement agreement. She requested that the Agency specifically implement its terms.
On May 6, 2016, the Agency issued its first final decision in which the Agency acknowledged that it breached the Agreement. Following Complainant's appeal to EEOC for enforcement, the Commission ordered the Agency to supplement the record to provide evidence of the Agency's compliance with the Agreement and to issue a new decision. See EEOC Appeal 0120162059 (September 22, 2016).
After supplementing the record with information concerning its compliance efforts, the Agency issued a new decision in which the Agency determined that it had cured its previous noncompliance and "substantially complied with its obligation pursuant to NSA Terms 3 a-c." This appeal followed.
On appeal, Complainant maintains that "the issue of 275 hours of sick leave remains unresolved." She asserts that if the restoration of leave had been done in a timely manner, the process would not have extended over 12 months and would not have caused her a financial hardship and exacerbation of her current disability. She also states that the Agency failed to comply with the September 2, 2016 Order, because it failed to submit affidavits explaining its compliance efforts. Complainant also argued that the Agency failed to provide adequate evidence of compliance because the Agency's offer of proof was "contradictory, unexplained, and generally confusing."
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).
The record before us shows that the Agency provided sufficient proof of its efforts to cure its previous non-compliance with the Agreement to the extent permitted by law and given this unusual situation. We find that the statements from Agency officials and documentary evidence of record offered sufficient proof and an adequate explanation regarding the money that was paid and the leave restoration, to the extent permitted.
Complainant was on sick leave from December 27, 2015, through her retirement from the Agency on April 30, 2016. She signed the settlement agreement on January 15, 2016. The evidence provided by the Agency shows that Complainant's Leave and Earning Statement (LES) on December 26, 2015, showed a zero balance for sick leave. As of March 19, 2016, her LES record showed that she had been credited with 279.5 hours of sick leave, consisting of a beginning of the year balance of 175.5 hours of sick leave, plus an accrued year-to-date balance of 104 hours.
The Agreement required the Agency to restore 205 hours of annual leave and 275 hours of sick leave. The sum of these balances show that Complainant had a total of 666.75 hours of leave available for use through the date of her retirement. The record also shows that Complainant used 608 hours of combined annual and sick leave from January 10, 2016 through April 30, 2016, receiving pay until her retirement. She retired with 58.75 hours of unused annual leave, and received a lump sum payout upon her retirement for this unused annual leave.
Complainant argues that she did not receive the full benefit of the restoration of her sick leave due to what she characterizes as delays in its restoration. We note, however, Complainant voluntarily retired after the Agreement was executed, which was not anticipated from the face of the Agreement. Complainant may be arguing that if her sick leave been restored earlier, she would have had more unused annual leave subject to payout upon her retirement. However, we do not find that the restoration of her sick leave was unreasonably delayed by the Agency. The agreed upon sick leave hours were credited to her within a reasonable period of time and used to cover some of her absence from work until her retirement. As there is no payout of sick leave upon the retirement of a federal employee, any unused sick leave hours will be available in the event she returns to federal service.
For these reasons, we find that to the extent there had been questions about compliance with the Agreement, the Agency provided adequate proof that any issues had been resolved by the time it issued its December 23, 2016 decision. Therefore, we find that Complainant has not shown that there is an ongoing breach of the terms of the Agreement at issue.
CONCLUSION
Accordingly, we AFFIRM the Agency's December 23, 2016 breach determination, finding that any previous concerns about its compliance with the January 15, 2016 Agreement have been rectified.
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 12, 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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