0120161836
10-13-2016
Lyn H.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lyn H.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120161836
Agency No. 120025900532
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated April 12, 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
On August 3, 2013, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(2b) The Navy, in consideration of the mutual promises contained herein, agrees [that] no later than 14 days from the latest date of signature of the parties and their representatives on this settlement agreement, management will initiate action to purge the 5 Day Suspension from her personnel record, dated 11 January 2012 and place [Complainant] in an Administrative Leave for the period of 16 January 2012 through 20 January 2012; and
(8) [Complainant] understands and agrees that she shall give written notice of any claimed violation, breach, or failure to perform, by the Navy any of the promises described in this Agreement to the BUMED EEO Office . . . within 30 calendar days of the date she knew or should have known of the alleged noncompliance.
As early as November 2013 and for two years, Complainant raised the issue of non-compliance, telling the Agency that she had not received the pay adjustment that was owed to her. The Agency reassured Complainant that the payment was coming, but that it could take some time. The record includes the Civilian Leave and Earnings Statements for Complainant. The statements do not show that Complainant actually received any additional payment. The statements reflect that she received only her regular salary. There is a notation of the $989.20 amount with an adjusted effective date of January 28, 2012 for the pay period September 21, 2013. The record, however, includes an error message with regard to the action processed on September 13, 2013, noting that further action was required. The record shows that on August 13, 2013, the Defense Finance and Accounting System Command (DFAS)) liaison initiated a request to correct a timecard for the Pay Period Ending 1/28/2012. The record includes the 9/16/2013 Notification requesting that a corrected time card should be submitted. Moreover, it documents that the payment processed on September 13, 2013 was for regular pay. (Payment made for regular pay for the week of 01/16/12 in the amount of $989.20 Processed on 09/13/13. Completed."). It stated the "Master Time History for Week 1 shows RG (regular hrs) at 1/23/12-01/27/12 and not KB. KB hours are shown for 01/16/12-01/20/12 which is not within the time frame (01/21/12) shown on time card. Please review and advise." It states "pay adjustment made for offline correction for the week of January 16, 2012." The record showed that the Agency acknowledged there were errors with regard to its claimed payment to Complainant.
By letter to the Agency dated March 18, 2016, Complainant alleged in writing that the Agency was in breach of the settlement agreement, and requested that the Agency implement its terms. Specifically, Complainant alleged that the Agency failed to pay her for the Administrative Leave for the period of January 16, 2012 through January 20, 2012.
Although there was a request for further action, the record contained no DFAS confirmation and accounting breakdown showing that an actual payment to Complainant was paid out, beyond her regular pay, or the date that any additional payment was received. Instead, the Agency demanded that Complainant provide a copy of her Leave and Earning Statement (LES) ending September 21, 2013. For two years, the parties exchanged communications with no resolution regarding the payment that the Agency acknowledged was due to Complainant, as a condition of compliance.
In its FAD, the Agency concluded that it complied with the Agreement. The Agency stated that it determined that Complainant was paid $989.20, which was processed on September 13, 2013.
CONTENTIONS ON APPEAL
On appeal, Complainant states the Agency claimed it paid Complainant on several different dates, but failed to submit proof of compliance, and instead placed the burden on Complainant to prove that she had not been paid.
In response, the Agency argues that Complainant failed to notify the EEO Director within 30 days of the date she became aware of her breach claims and that "her opportunity to now address the issue ... has well passed." The Agency also argues that Complainant's appeal to OFO was untimely, because she did not file the appeal 35 days after she served the agency with the allegations of noncompliance. The Agency contends that Complainant provided no evidence that the Agency breached term 2b of the settlement agreement. The Agency reasoned that it provided "irrefutable evidence that DFAS initiated ...and completed an action... that resulted in an increased payment of $989.20" and "the increased payment was reflected in the PPE 09-21-2013."
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).
We find that the Agreement is valid and binding on both parties.
In this case, the Agreement required the Agency to do more than initiate action to purge the subject action from her personnel record. The Agreement required the Agency to "place Complainant in an Administrative Leave [status] for the period of 16 January 2012 through 20 January 2012." The Agency has not shown that it "placed Complainant in an Administrative Leave" posture. The Agency acknowledged that such a placement necessitated a payment adjustment in the amount of $989.20. The payment action was requested, but the record fails to show that the payment was ever completed.
Moreover, the Agency maintains that Complainant's failures "prevented the Agency from determining if DFAS had provided incorrect information, which, in turn, prevented the Agency from curing a potential breach." At any point, the Agency could have taken the time to verify whether payment had been completed.
Further, we are not persuaded that Complainant failed to present her claims in a timely manner. The Agency was clearly placed on notice that it failed to place her in an Administrative Leave status within 14 days of the execution of the Agreement. The Agency was also made aware that an error had occurred with regard to the claimed September 13, 2013 payment to Complainant, but failed to take sufficient steps to support its claims that it had nevertheless fully complied with term 2b of the Agreement. For all of these reasons, we find that the record supports Complainant's claim that the Agency breached the Agreement.
When we find that a breach has occurred, we have two options: 1) order specific performance or 2) reinstate the complaint. In this case, Complainant has requested specific performance. She seeks the payment of the outstanding $989.20 owed to her.
We therefore order that the Agency provide Complainant $989.20, with proof of payment, including the method of payment, the date that the payment was deposited in Complainant's bank account or that the Agency issue a check for $989.20, payable to Complainant, along with proof that the check was cashed by Complainant. If the Agency has already provided Complainant with payment, the Agency must provide proof of payment.
CONCLUSION
Accordingly, for the reasons stated herein, we REVERSE the Agency's Decision and we REMAND this matter to the Agency for remedial relief, consistent with the Order below.
ORDER (E1016)
Within thirty (30) calendar days of the date this decision was issued, the Agency is ordered to provide Complainant $989.20, with proof of the payment, including the date that the payment was deposited in Complainant's bank account, or alternatively, the Agency is ordered to issue a check payable to Complainant, for $989.20, along with proof that the check was cashed by Complainant. If the Agency has already provided Complainant with payment, the Agency must provide Complainant and the Commission with proof of payment, the date of payment and the manner in which the payment was reported or coded for tax purposes.
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 (M0416)
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 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. The requests 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 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 (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
October 13, 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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