0120152850
01-13-2016
Micha T.,1 Complainant, v. W. Thomas Reeder, Jr., Director, Pension Benefit Guaranty Corporation, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Micha T.,1
Complainant,
v.
W. Thomas Reeder, Jr.,
Director,
Pension Benefit Guaranty Corporation,
Agency.
Appeal No. 0120152850
Agency No. 15-004-F
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated July 31, 2015, finding that it was in compliance with the terms of a February 23, 2015 settlement agreement and April 9, 2015 amendment to that settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On February 23, 2015, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been pursued through the EEO complaint process. The February 23, 2015 settlement agreement provided, in pertinent part,2 that:
7. In the event that [Complainant] secures Federal or full-time employment at any point prior to the end of the eight (8) week period during which [Complainant] will be on administrative leave, [Complainant] will immediately notify [the Agency] of her new employment.
a. Upon receiving notification of [Complainant's] new employment start in the private sector, [the Agency] will terminate [Complainant's] non-duty, paid leave status and, if needed, will coordinate with [Complainant] to ensure that an updated SF-52 is processed with the correct date of resignation.
b. If [Complainant] secures employment with the Federal government (prior to the end of the eight (8) week non-duty, paid leave period), [the Agency] will take all steps necessary to effect a transfer from [the Agency] to the new agency, including ensuring an updated SF-52 is processed that does not entail a break in federal service.
On March 9, 2015, Complainant received a job offer from another federal agency ("New Agency"). This offer was communicated to Agency the next day by Complainant's representative. On March 30, 2015, the New Agency contacted the Agency and asked for a release date3 for Complainant on April 19, 2015.
As a result, on April 9, 2015, Complainant and the Agency entered into an amendment to the February 23, 2015 settlement agreement. The April 9, 2015 amendment provided, in pertinent part, that:
5. In the interest of resolving the Claims, [the Agency] agrees:
a. To accept [Complainant's] voluntary request for a transfer from [the Agency] to [the New Agency] and process any paperwork needed to complete the transfer with a release date of April 19, 2015. With respect to SF 75, Section B, box 4-A will be checked "Currently on the Rolls of this Agency" and Section I, box 54 will be checked "No."
b. To place [Complainant] in LWOP status for four (4) weeks, beginning on March 21, 2015 and ending on April 19, 2015.
c. To rescind the resignation action that was made effective on March 20, 2015, unless, other than because of an Act of God, [Complainant] is not transferred to [the New Agency] by April 20th, 2015, in which [Complainant's] resignation date of March 20, 2015, will remain in effect.
d. To abide by the confidentiality provisions contained in paragraph 11 herein and to continue to abide by the confidentiality provisions of the February 23rd Agreement.
By letter to the Agency dated June 25, 2015, Complainant, through her representative, alleged that the Agency breached provision 7.b. of the February 23, 2015 settlement agreement and provisions 5.a. and 5.c. of the April 9, 2015 amendment. Specifically, Complainant alleged that while she received an offer of employment with the New Agency, the Agency improperly issued a SF-52 and/or SF-50 indicating that she voluntarily resigned from Agency employment effective March 20, 2015, instead of April 19, 2015, causing her to appear to have a break in federal service before she started working at the New Agency.
Complainant stated the Agency's Human Resources Director ("HR Director") acknowledged there was a breach of the instant settlement agreement and amendment, because information was placed in her eOPF indicating a resignation date of March 20, 2015, instead of April 19, 2015. She asserted that this error "has put my transfer to [the New Agency] in jeopardy since [the New Agency] has had access to my eOPF for nearly two months. There may be a negative impact on my federal benefits. There also may be questions about whether my resignation from [the Agency] was related to my transfer to [the New Agency], or to something else. In addition, by [the Agency] requesting the eOPF from [the New Agency] to make a correction, [the New Agency] could begin to raise questions."
In its July 31, 2015 final decision, the Agency found no breach. The Agency referenced a written declaration in the record, dated August 10, 2015, from a Supervisory HR Specialist (Supervisory Specialist) that, on March 10, 2015, she had received an email from an Office of General Counsel (OGC) representative stating that Complainant had a conditional offer of employment with [the New Agency]. The Specialist stated, however, there was no direct contact from anyone at [the New Agency] with anyone at the Agency. The Supervisory Specialist stated that when no one from [the New Agency] contacted the Agency by March 20, 2015, the effective date of Complainant's voluntarily resignation from the Agency, she made arrangements for the processing of the necessary paperwork to reflect Complainant's voluntarily resignation on March 20, 2015.
However, on March 30, 2015, the New Agency sent an email to the Supervisory Specialist stated that Complainant had been offered a job, and requested a release date of April 19, 2015. Following the signing of the April 9, 2015 amendment, the Supervisory Specialist directed a staff member to process the rescission of Complainant's March 20, 2015 voluntary resignation, and remove the voluntary resignation documents from Complainant's eOPF. On May 7, 2015, the [New Agency] requested the transfer of Complainant's eOPF and it was transferred to [the New Agency] on May 8, 2015.
The Agency stated that the Supervisory Specialist stated that on June 8, 2015, she became aware of Complainant's allegations that the March 20, 2015 voluntarily resignation paperwork was still in her eOPF by the HR Director. The HR Director asked the Supervisory Specialist to look into the matter. The Supervisory Specialist stated she obtained a hard copy of Complainant's eOPF file from the New Agency, but did not find any document showing that Complainant voluntarily resigned on March 20, 2015.
Based on this information, the Agency issued its final determination that it was in full compliance with the provisions of the settlement agreement and its subsequent amendment.
The instant appeal followed. On appeal, Complainant argues that, contrary to the Agency assertions, her eOPF "as of June 24, 2015, did contain at least one document that, in violation of the Settlement Agreement and the Amendment, raised a question as to whether as of April 19, 2015, the Appellant was 'Currently on the Rolls of This Agency.' Amendment at paragraph 5.a. The eOPF contained Standard Form 2810, 'Notice of Change in Health Benefits Enrollment...Appellant provided a copy to the Agency's EEO Office on July 31, 2015, when the EEO Office first divulged that, contrary to [HR Director's] June 10, 2015, admission concerning the eOPF, the Agency was saying something different." Complainant submitted a copy of this form on appeal. The form indicates that Complainant's health insurance benefits were terminated effective March 21, 2015. 4
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).
Provision 7.b. of the settlement agreement provides for an affirmative Agency obligation to assure that once Complainant secured employment with the Federal government prior to the end of her 8 week non-duty, paid leave period, Agency management would take all necessary steps to effect Complainant's transfer to the new agency, including ensuring an updated SF-52 was processed that did not entail a break in federal service. Provisions 5.a. and 5.c. of the subsequent amendment to the settlement agreement provided that the Agency was to accept Complainant's voluntary transfer to the New Agency and process any paperwork needed to complete the transfer with a release date of April 19, 2015, and rescind the resignation action that was made effective on March 20, 2015.
The Agency has conceded that it initially processed paperwork that indicated that Complainant resigned from the Agency effective March 20, 2015. However, it asserted that it later rescinded the resignation and removed all reference to it from Complainant's personnel files. An Agency official also attested to the fact that she examined a copy of Complainant's eOPF that she received from the New Agency and she could not find any reference to the March 20, 2015 resignation. We find that Complainant has not provided any evidence that the March 20, 2015 resignation remained in her personnel records that would have indicated a break in federal service prior to her April 19, 2015 employment by the New Agency.
It appears that Complainant's main argument is that her personnel record contained a copy of a
"Notice of Change in Health Benefits Enrollment" indicating that her health insurance benefits were terminated effective March 21, 2015. While this form does not indicate why her health insurance was terminated, Complainant seems to assert that it implies that her employment with the Agency ended on March 20, 2015. We disagree. Nothing on the form indicates that Complainant's employment with the Agency was terminated before her April 19, 2015 release date. There are many other reasons why her health insurance could have been cancelled.5 We do not find that the presence of this form in Complainant's eOPF shows that she was no longer employed by the Agency between March 20, 2015, and her release date of April 19, 2015.
Accordingly, we find that the Agency has provided sufficient evidence that it is currently in compliance with the terms of the settlement agreement and its amendment. Complainant has not provided adequate evidence to the contrary. The Agency's July 31, 2015 determination of compliance is AFFIRMED.
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), at 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 (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 Complainants 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
January 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.
2 The settlement agreement also provided for the Agency to place Complainant in a non-duty paid leave status for eight weeks; accept Complainant's voluntary resignation and process an agreed SF-52; rescind and cancel the notice of proposal removal; waive Complainant's repayment of $538.50; and remove all relevant documentation concerning Complainant's reprimand, denial of the within grade increase, and less than satisfactory and less than fully effective performance appraisals from her Official Personal Folder. These provisions are not at issue in the instant case.
3 A "release date" appears to be the date a federal employee is released from employment with one federal agency to become employed by another federal agency without a break in federal service.
4 We note that prior to issuing its July 31, 2015 determination of compliance, the Agency sent Complainant a request for a "screen shot" from her eOPF of the paperwork showing that she resigned on March 20, 2015, instead of April 19, 2015. Complainant did not respond to this request until the day the Agency issued its final decision. At that time, her representative submitted a copy of the form indicating her health insurance benefits were terminated effective March 21, 2015.
5 We further note that Complainant has not alleged that she was denied any health insurance benefits due to any termination of her insurance between March 21, 2015, and her release date of April 19, 2015.
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0120143045
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0120152850