0420090007
11-27-2009
Maryann Sheehy, Complainant, v. Lt. Gen. Keith B. Alexander Director, National Security Agency, Agency.
Maryann Sheehy,
Complainant,
v.
Lt. Gen. Keith B. Alexander
Director,
National Security Agency,
Agency.
Petition No. 0420090007
Request No. 0520080753
Appeal No. 0120072655
Agency No. 01-017
DECISION ON A PETITION FOR CLARIFICATION
On December 9, 2008, the Equal Employment Opportunity Commission
(EEOC or Commission) docketed a petition for enforcement to examine the
enforcement of an order set forth in Maryann Sheehy v. National Security
Agency, Request No. 0520080753 (October 12, 2008). This petition for
clarification is accepted and GRANTED by the Commission pursuant to 29
C.F.R. � 1614.503.
ISSUE PRESENTED
Whether the agency's promise to pay complainant all back pay from June
22, 1998 until her retirement date includes paying her for the period
in which she was in an unpaid status.
BACKGROUND
On or about April 19, 2002, complainant filed a complaint in which
she alleged that the agency discriminated against her on the bases
of sex (female), disability (Fibromyalgia), and in reprisal for prior
EEO activity in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq., when
the agency directed her to report to its Fort Meade, Maryland facility
rather than continue working at a site in Northern Virginia. Complainant
further alleged that the agency discriminated against her on the basis
of sex when the agency selected a male employee to perform the same
functions she previously performed at the Northern Virginia facility.
After the investigation of complainant's complaint, she requested a
hearing before an EEOC Administrative Judge (AJ), and on September 21,
2004, the AJ issued an order in which she stated that the accepted
issues in complainant's complaint were: (1) did the agency unlawfully
discriminate against complainant on the bases of sex and disability,
by treating her in a disparate manner when the agency ordered her
to report to its Fort Meade, Maryland, facility rather than continue
to assign her duties at a work site in Northern Virginia; (2) did the
agency fail to provide complainant with a reasonable accommodation when
it ordered her to report to its Fort Meade facility; (3) did the Agency
unlawfully discriminate against complainant on the basis of sex when a
male was selected to perform the same or similar functions for the agency
in Northern Virginia which complainant had previously performed at that
site; and (4) did the agency unlawfully discriminate against complainant
by subjecting her to a continuing pattern of harassment based on reprisal
following her contact with an EEO counselor in January 2001.
On December 20, 2004, the parties entered into a settlement agreement,
and complainant withdrew her complaint. The December 20, 2004 settlement
agreement provided, in pertinent part, that:
Within sixty (60) days after the AGENCY counsel of record receives
the fully executed original of this AGREEMENT, the AGENCY will cause
to be entered into the appropriate personnel system at the Agency
that the COMPLAINANT was promoted to the grade of GG-13, step 4 on 21
June 1998, and will effectuate any step increases as would normally
be earned for satisfactory performance up to 22 June 2001, the date
of her disability retirement. COMPLAINANT will receive all back pay,
along with any applicable interest normally associated with back pay
awards, from this date, 21 June 1998, until her disability retirement
date on 22 June 2001 the Agency will cause all the necessary payroll
actions, including the appropriate deductions and contributions. Also
within sixty (60) days after the AGENCY counsel of record receives the
fully executed original of this AGREEMENT, the Agency will cause that
Complainant will be paid $5,000 in costs. To satisfy this payment,
the AGENCY will issue COMPLAINANT a lump sum payment of Five Thousand
Dollars ($5,000), payable to COMPLAINANT and her counsel of record by
U.S. Treasury check. Said Treasury check will be delivered by overnight
mail express to COMPLAINANT'S counsel of record . . . . Because of the
very complicated nature of retroactive promotions and corresponding back
pay entitlements and because some actions necessary to cause COMPLAINANT
to be paid are outside of the scope of the AGENCY'S control, the AGENCY
cannot guarantee with any specificity when COMPLAINANT will be paid.
By letter to the agency dated March 7, 2007, complainant alleged breach.
Specifically, complainant alleged that the agency failed to pay her
promised back pay and applicable interest and benefits. Complainant
further alleged that the agency had not paid appropriate contributions
to her Thrift Savings Plan (TSP) account. Complainant also alleged
that the agency failed to promote her to a GG-14, Step 4 position,
although her promotion to that level was discussed in pre-settlement
conversations and documents.
In its April 19, 2007 FAD, the agency found no breach. The agency
concluded that, although complainant maintained that she was entitled to
a GG-14, step 4 promotion instead of a GG-13, step 4 promotion because
the parties discussed this during pre-settlement negotiations, the terms
of the agreement only guaranteed that complainant would be promoted to
the GG-13, step 4 level effective June 21, 1998. The agency further
determined that on or about February 18, 2005, it issued checks to
complainant and her former attorney for the $5,000.00 lump sum and
$21,237.57 for back pay and applicable interest associated with her
retroactive promotion. The agency stated that complainant informed
the agency that she did not cash the checks because her bank stated
that her former attorney must be present in order to cash the checks.
The FAD stated that the agency would reissue a check for the back pay
to complainant and a check for the lump sum to her former attorney
within three weeks. The FAD further stated that it was recalculating
the appropriate contributions to complainant's TSP account and that she
would be notified when the computations were completed.
Complainant appealed the agency's final decision to the Commission.
On appeal, complainant argued that the settlement agreement should
be voided because the agency failed to comply with the Older Workers'
Benefit Protection Act (OWBPA). Complainant claimed that she alleged age
discrimination in her underlying complaint but that the agency failed
to provide her with a reasonable time period in which to consider the
terms of the agreement or revoke the agreement, as mandated by the OWBPA.
Complainant further argued that the agreement should be voided because
it is the product of fraud or mistake. Complainant maintained that the
pre-settlement notes of the Administrative Judge (AJ) and complainant's
former attorney reflected that the agency would provide her with a GG-14
level promotion, and she "never would have signed the written settlement
had she known that it provided her with a lower retroactive promotion."
The Appellate Decision
In a decision dated July 31, 2008, the Commission first determined
that the settlement agreement was not governed by the OWBPA because
complainant's underlying complaint did not include a claim of age
discrimination. Maryann Sheehy v. National Security Agency, EEOC Appeal
0120072655 (July 31, 2008). The Commission also determined that despite
complainant's claim that the agreement should be voided because it
contained the wrong retirement date, the agreement was enforceable but
reformed with respect to the parties mutual agreement that the correct
retirement date is November 1, 2001. The Commission determined that the
agreement was not the result of fraud and noted that complainant was
represented by an attorney throughout settlement negotiations; signed
the agreement and attested that the agreement was binding; attested that
she did not rely upon any representation or statement made by the agency
with regard to the subject matter, basis, or effect of the agreement
except as specifically stated in the agreement; and, attested that she
thoroughly discussed all aspects of this agreement with her attorney,
carefully read the agreement, and understood and voluntarily agreed to
all of the agreement's terms and provisions.
The Commission also determined that the agency complied with its promise
to retroactively promote complainant to GG-13, step 4 effective June 21,
1998 and grant complainant any step increases she would have received
from the date of the retroactive promotion to the November 1, 2001 date of
her retirement. However, the Commission further determined that, because
the agreement did not provide that back pay would be reduced because
complainant was AWOL or otherwise in unpaid status, the agency breached
the agreement when it failed to pay complainant back pay, benefits, and
interest for the entire period from June 21, 1998 to November 1, 2001.
Finally, the Commission noted that although complainant did not
receive checks from the agency for the lump sum and back pay until late
September 2007, the delay was apparently caused by the check-cashing
policy of complainant's bank and various challenges in delivering mail
to complainant. At that time, complainant had still not cashed the
checks for the lump sum and back pay. In light of the circumstances, we
found that ordering the agency to comply with the terms of the agreement
was the appropriate remedy in this case. Specifically, the Commission
ordered the agency to undertake the following actions to the extent that
it had not already done so:
1. Within thirty (30) calendar days after the date this decision becomes
final, the agency shall issue a check to complainant for back pay and
interest for her retroactive promotion from June 21, 1998 until her
November 1, 2001 retirement date. The agency shall not reduce the back
pay award because of AWOL or other non-pay status.
2. Within thirty (30) calendar days after the date this decision becomes
final, the agency shall make appropriate deductions and contributions
to complainant, including contributions to complainant's TSP account.
3. Within thirty (30) calendar days after the date this decision becomes
final, the agency shall pay complainant $5,000.00 in costs.
The matter was assigned to a Compliance Officer and docketed as Compliance
No. 0620080784 on or about August 1, 2008.
Request for Reconsideration
On August 25, 2008, complainant filed a request for reconsideration of
our appellate decision. Maryann Sheehy v. National Security Agency,
EEOC Request No. 0520080753 (September 12, 2008). In that request,
complainant argued that the appellate decision erred in finding that
she did not validly raise an age discrimination claim in her complaint
that voided the agreement under OWBPA and ignored the mutual mistake of
fact regarding complainant's retirement date that should have voided the
agreement. Complainant further argued that the agreement should have
been voided because the agency delayed paying her the amount of money
she was entitled to receive for almost three years.
On September 4, 2008, the agency also filed a request for reconsideration
with the Commission. In that request, the agency argued that our
appellate decision erred in holding that the agency breached the
agreement when it did not award complainant back pay during the period
when complainant was absent without leave (AWOL). The agency argued
that although the appellate decision correctly held that complainant
was in non-pay AWOL status from March 28, 2001 through June 22, 2001,
and the settlement agreement did not contain any specific terms regarding
this status period, the Commission erred when it held that the agreement
requires the agency to pay complainant back pay for the non-pay status
period.
Additionally, the agency opposed complainant's request for
reconsideration. The agency argued that complainant did not validly
raise an age discrimination claim in her underlying complaint because
complainant only cited sex, disability, and retaliation as bases for
her complaint in her interrogatory response. The agency further argued
that there was no mutual mistake of fact here regarding complainant's
retirement date; instead, the agency contends that the retirement date
reflected in the agreement was the result of a typographical error and
both parties knew at the time that the settlement agreement was executed
that November 1, 2001 is the correct retirement date.
In a decision dated September 12, 2008, the Commission denied
complainant's request for reconsideration and ordered the agency to
comply with the orders set forth in our appellate decision.1
Petition for Clarification
On December 9, 2008, the agency submitted the petition for enforcement
at issue herein. In its petition, the agency contends that our
reconsideration decision should be clarified because it only mentioned
complainant's request for reconsideration but did not mention the agency's
request for reconsideration. The agency further reiterates its argument
that the Commission erred in its appellate decision when it held that
the agency must pay complainant for the entire period from March 28, 2001
through November 1, 2001, without deducting complainant's AWOL period.
In response, complainant argues that the Commission should again
reconsider its appellate decision and reiterates arguments made in her
initial request for reconsideration. Complainant further argues that
the agreement should be voided because the agency still has not paid
her back pay.
On July 14, 2009, the agency replied to complainant's response and
reasserted arguments contained in its previous submissions. The agency
notes that complainant is not entitled to any further appeal of the
appellate decision and cannot use her petition for clarification as a
mechanism to reattempt reconsideration.
ANALYSIS AND FINDINGS
As an initial matter, we note that our reconsideration decision
inadvertently failed to acknowledge that the agency also requested
reconsideration. Although the Commission considered and rejected the
agency's reconsideration arguments before issuing our decision in EEOC
Request No. 0520080753, we find that it is appropriate to clarify the
decision by addressing the specific arguments and contentions raised by
both parties.
In requesting clarification of our previous decision, the agency
reiterates its reconsideration argument that complainant should not
be paid back pay for the period that she was AWOL or in unpaid status.
The agency notes that in Jenkins v. Department of Education, 0120062001
(September 13, 2001), the Commission held that a settlement agreement
must specifically address changing a period of unpaid status to a
period of paid status in order for a complainant to receive back pay
for that period. However, in Jenkins, the agency merely agreed to "pay
complainant back-pay less appropriate deductions, for the retroactive
period of the promotion to the date of her retirement," whereas in this
case, the agency agreed that "complainant will receive all [emphasis
added] back pay, along with any applicable interest normally associated
with back pay awards, from this date, 21 June 1998, until her disability
retirement date." By agreeing to comprehensively provide complainant
with all back pay for the period from June 21, 1998 until complainant's
disability retirement date on November 1, 2001, the agency specifically
promised to pay complainant back pay for the entire period without
regard to any previously-designated unpaid status. Thus, the agency
must pay complainant back pay for the entire period from June 21, 1998
until November 1, 2001.
In response to the agency, complainant contends that the agreement
should be voided because her underlying complaint contained a claim
of age discrimination, and the agency failed to provide her with the
protections of the OWBPA before entering into the agreement with her.
As our appellate decision noted, complainant "tangentially" mentioned
age discrimination for the first time in the narrative of an October 20,
2001 investigative affidavit and in a November 19, 2001 amendment to
her investigative affidavit.
In her request for reconsideration, complainant noted that during
discovery, the agency asked her the following interrogatory question dated
September 23, 2002: "If you contend that you were discriminated against
based on disability, sex, age, or retaliation when your employment at
the Agency was terminated, describe in detail each and every act and/or
omission on the part of the Agency, which you contend constitutes the
basis for your claim, include within your description the identity
of the alleged perpetrator(s)." However, complainant failed to note
that in her November 4, 2002 response to the interrogatory, she did not
mention age discrimination at all, and answered the direct interrogatory
question by stating that the agency's "motive for transferring me was
discrimination because I was a woman, because I had a disability, and
intentional malicious retaliation for filing an initial EEO complaint."
There was no mention of age discrimination in complainant's response.
We further note that in complainant's prehearing statement dated September
7, 2004, she stated that although there "has been some confusion"
about the her claims, the agency's October 4, 2004 identification of
complainant's claims properly identified her claims as: 1) whether
complainant was subjected to illegal discrimination based on sex
when she was directed to return from her reassignment and a higher
grade male employee was selected for her previous decision; 2) whether
complainant was subjected to retaliatory harassment after she contacted
an EEO counselor; and, 3) whether the agency failed to accommodate her
disability, which led to her termination. The pre-hearing statement
further stated that "in effect, it terminated [complainant] for not
being physically able to accept her reassignment" and replaced her
with a male employee. There was no mention of age discrimination in
this pre-hearing statement, which was submitted three months before the
settlement agreement was executed. Likewise, complainant's September
7, 2004 motion for summary judgment does not cite age as a basis of
discrimination.
The pre-hearing statement was complainant's last articulation of her
claims before the settlement agreement was executed. In that statement,
complainant expressly stated that she sought to resolve any confusion
about the characterization of her claims and identified disability,
reprisal, and sex discrimination as the bases for her complaint, but there
was no mention of age discrimination. Thus, on September 21, 2004, the AJ
identified the issues raised by complainant as alleging discrimination
on the bases of sex, disability (including failure to accommodate),
and reprisal, but again, there was no mention of age discrimination.
Finally, we are also persuaded that age was not a basis of complainant's
underlying complaint by the terms of the December 20, 2004 settlement
agreement negotiated and signed by complainant. The agreement stated
that complainant agreed to settle claims of discrimination arising
from Title VII, the EPA, and the American's with Disabilities Act
[sic], but there is no mention of the ADEA. Likewise, the agreement
describes complainant's settled complaint as alleging discrimination
on the basis of disability, reprisal, and "an Equal Pay Act violation,"
but yet again, there was no mention of age discrimination. We find that
it is unreasonable to expect the AJ and agency to afford complainant
OWBPA rights for a basis that complainant herself failed to raise to
their attention despite being given ample opportunities to do so.
Additionally, complainant claims that our finding that there was a
mutual mistake regarding complainant's retirement date means that we
must void the agreement. However, we did not find that the mistake was
the result of bad faith or fraud, as complainant claims. Therefore,
reformation is a viable equitable remedy here because there is clear
and convincing evidence that both parties misidentified complainant's
retirement date in the agreement but agreed that her retirement
date should be November 1, 2001. Indiana Insurance Company v. Pana
County. Unit School Disrict. No. 8, 314 F.3d 895, 903-04 (7th Cir.2003)
(quoting Restatement (Second) of Contracts, � 155, cmt. a (1981));
27 Williston on Contracts � 70.54 (4th ed.); Philipine Sugar Estates
Development Company v. Government of Philipine Islands, 247 U.S. 385, 389,
38 S.Ct. 513, 62 L.Ed. 1177 (1918) (noting that "[i]t is well settled
that courts of equity will reform a written contract where, owing to
mutual mistake, the language used therein did not fully or accurately
express the agreement and intention of the parties," and that "[t]he fact
that interpretation or construction of a contract presents a question
of law and that, therefore, the mistake was one of law is not a bar to
granting relief."). In this case, we determine that voiding the entire
settlement agreement would have been an inappropriately harsh remedy.
Therefore, we conclude that the agreement was appropriately reformed
with respect to the retirement date.
With respect to attorney's fees, complainant is a prevailing party with
respect to the March 21, 2007 appeal because the Commission found that the
agency breached the agreement. However, complainant should not receive
attorney's fees associated with her request for reconsideration because
her request was not granted by the Commission. Likewise, complainant
is not entitled to attorney's fees associated with this request for
clarification because she is not a prevailing party with respect to
this matter. Thus, complainant is only entitled to attorney's fees and
costs associated with the initial appeal.
Finally, complainant also maintains that the agency has engaged in bad
faith because it has not paid her the $5,000.00 lump sum and the back
pay award. The record reveals that on February 18, 2005, the agency
mailed two checks to complainant that were written to complainant
and her attorney, a check for $5,000.00 and a check for $21,237.57.
In November 2006, complainant notified the agency that she could not
cash the checks because both checks were written to two people, and
she wanted the agency to issue the checks to her alone. Additionally,
the agency conducted an audit to correct its failure to make the proper
amount of TSP contributions to complainant's account. On July 16, 2007,
the agency reissued the two checks solely to complainant, a check for
$5,000.00 and a check for $22,959.68. Complainant maintained that she
did not cash the checks because she was on vacation when the checks
were delivered, her mail should have been forwarded to her vacation
location, one of the checks was illegible because it was left outside
by the delivery service, and one of the checks was made to two people.
Thus, we determine that most of the delay in paying complainant is
attributable to problems delivering mail to complainant during her
vacation and understandable confusion over back pay calculations,
TSP contributions, and the check-cashing policy of complainant's bank.
Moreover, compliance has been delayed by the protracted dispute over the
interpretation of the agreement, which has included an appeal, requests
to reconsider, and a petition for clarification. 29 C.F.R. 1614 � 502
(b)(2). We do not find any evidence that the agency acted in bad faith
in this case.
Therefore, we now order the agency to pay complainant in accordance with
this decision and the order set forth below. We further warn complainant
that if she henceforth does not accept and deposit checks presented to
her in accordance with this agreement, we will not order the agency to
issue any further checks to her pursuant to the agreement.
Accordingly, the petition for clarification is GRANTED. The agency shall
comply with the Order set forth herein.
ORDER
To the extent that it has not already done so, the agency is ORDERED to
undertake the following actions:
1. Within thirty (30) calendar days after the date this decision becomes
final, the agency shall issue a check to complainant for back pay and
interest for her retroactive promotion from June 21, 1998 until her
November 1, 2001 retirement date. The agency shall not reduce the
back pay award because of complainant's AWOL or other non-pay status.
Complainant shall cooperate with the agency's efforts to compute the
amount of back pay and interest due, and shall provide all relevant
information requested by the agency. If there is a dispute regarding the
exact amount of back pay and/or interest due, the agency shall issue a
check to the complainant for the undisputed amount within thirty (30)
calendar days of the date the agency determines the amount it believes
to be due. The complainant may petition for enforcement or clarification
of the amount in dispute. The petition for clarification or enforcement
must be filed with the Compliance Officer, at the address referenced in
the statement
2. Within thirty (30) calendar days after the date this decision becomes
final, the agency shall make appropriate deductions and contributions
to complainant, including contributions to complainant's TSP account.
3. Within thirty (30) calendar days after the date this decision becomes
final, the agency shall pay complainant $5,000.00 in costs.
The agency is further directed to submit a report of compliance, as
provided in the "Implementation of the Commission's Decision. The report
shall include all supporting documentation verifying that the corrective
action has been implemented.
ATTORNEY'S FEES
Complainant is entitled to an award of reasonable attorney's fees
associated with the initial appeal. 29 C.F.R. � 1614.501(e). The award
of attorney's fees shall be paid by the agency. The attorney shall
submit a verified statement of fees to the agency -- not to the Equal
Employment Opportunity Commission, Office of Federal Operations -- within
thirty (30) calendar days of this decision becoming final. The agency
shall then process the claim for attorney's fees in accordance with 29
C.F.R. � 1614.501.
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)
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 (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
_____11/27/09_____________
Date
1 We note that on September 27, 2008, complainant filed a statement
with the Commission in which she opposed the agency's request for
reconsideration. In that statement, complainant argued that the agency
should not deduct the period she was in non-pay status from her back
pay because, by agreeing to pay her all back pay from June 21, 1998,
until her disability retirement date, the agency agreed not to deduct
any money for this period of time. The complainant further requested
attorney's fees for successfully appealing his settlement breach claim
to the Commission.
??
??
??
??
2
0420090007
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
11
0420090007