0120172905
04-19-2018
Myles W.,1 Complainant, v. Dr. Mark T. Esper, Acting Secretary, Department of the Army (National Guard Bureau), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Myles W.,1
Complainant,
v.
Dr. Mark T. Esper,
Acting Secretary,
Department of the Army
(National Guard Bureau),
Agency.
Appeal No. 0120172905
Agency No. T2009046WIAO
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's July 14, 2017, 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 complaint, Complainant was a former Agency employee, having worked as a Duel Status Technician for the Wisconsin National Guard in Wisconsin Rapids, Wisconsin, and in the civilian position of Surface Maintenance Repair Technician (WG-8) in the Agency's Field Maintenance Shop.
Complainant's employment with the Agency was terminated in 2009, shortly after he contacted an EEO Counselor to raise an allegation of sexual harassment. Believing his termination was motivated by reprisal for engaging in protected EEO activity, Complainant filed an EEO complaint, which the Agency investigated. In November 2011, a hearing was held before an EEOC Administrative Judge ("AJ"). EEOC Hearing No. 443201100128X. On February 8, 2012, the AJ issued a decision in Complainant's favor, accompanied by an Order directing the Agency to, among other things, pay Complainant back pay, with interest, from the date of his termination in 2009, through the conclusion of his duel military status in 2011. The Agency responded with a motion to dismiss the already decided case on jurisdictional grounds, which the AJ denied. On April 30, 2012, the Agency issued a Final Order rejecting the AJ's decision and Order. On March 22, 2016, the Commission reversed the Agency's Final Order, affirmed EEOC jurisdiction over the matter, and ordered the Agency to take the remedial actions originally ordered by the AJ. EEOC Appeal No. 0720120030. Based on the Commission's Order, the Agency was required to pay Complainant's back pay by August 24, 2016.
The Agency would not comply with the portions of the Order requiring it to pay Complainant, so on January 17, 2017, Complainant and the Agency entered into a settlement agreement ("the Agreement") to resolve the matter.
Relevant to the instant case, are Provisions 2(a), 2(b), and 6:
Provision 2
a. Back Pay. Complainant shall be paid back pay plus interest at the WG-8, step 2 level for the period from January 6, 2009 to January 30, 2012, covering a total of 80 pay periods in accordance with calculations computed in accordance with 5 C.F.R. �550.805.
b. [Complainant] has cooperated in the Agency's efforts to compute the amount of back pay due, inasmuch as he has provided all relevant information reasonably required by the Agency...The computation of back pay shall be based on that information previously provided by [Complainant], or available to the Agency or [Defense Finance and Accounting Service ("DFAS")] through other sources, and shall not be delayed or diminished due to the incompleteness or imperfection of any information or documents previously provided by [Complainant].
Provision 6
Should any payment require a request for payment through DFAS, the request for payment will be made within [10] calendar days of the signing of this Agreement. [Complainant] understands that DFAS is a separate agency, and the Agency has no control over how quickly DFAS will process the payment. Typically, such payments may take up to 120 days or more to be deposited into a complainant's account... reasonable efforts will be made to promptly make payment.
Under Provision 6 of the Agreement, the parties understood that payment could be "reasonably expected" by May 26, 2017. The Agency contends that it submitted a request for the 80 periods of back pay, along with compensatory damages and attorney fees, in accordance with the Agreement, on January 28, 2017. DFAS would not accept Complainant's back pay documentation for processing because it was missing W-2 forms for 2011. The Agency requested that Complainant provide the forms, but Complainant could not locate them. No payments were made. On May 31, 2017, Complainant notified the Agency that it was in breach of the Agreement, having failed to pay his attorney fees, $5000 compensatory damages, and back pay, and requested that the Agency specifically implement its terms.
According to the Agency, when it received Complainant's Breach Notice, "confusion existed" about what source of funding it would use to pay the attorney fees, back pay, and compensatory damages specified in the January 17, 2017 Agreement (and prior EEO decisions). Specifically, the Agency was "confused" about whether it or its state counterpart, the Wisconsin National Guard ("WING"), was responsible for payment, explaining that the WING State Equal Employment Manager ("SEEM") had not been informed about the Agreement. The Agency determined that the SEEM, the US Property and Fiscal Office ("USPFO") Wisconsin, and WING Fulltime Manning Personnel Directorate ("MPD") would work with DFAS to make the payments. These offices located funding and paid Complainant's attorney fees and $5000 compensatory damages by early July 2017. However, the Agency has not met its obligation to pay Complainant back pay.
On July 14, 2017, the Agency issued a final decision explaining that it did not have complete documentation necessary to obtain back pay from DFAS, yet also stated, "based upon our inquiry with DFAS, the payment of 80 periods of back pay is still being processed. We are actively following up to ensure it is processed as quickly as possible and will continue to monitor and update you accordingly." Complainant appealed, arguing that the Agency breached Provisions 2(a) and 2(b) of the Agreement.
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).
On February 13, 2018, the Agency, responding to a Document Request from the Commission, confirmed that since issuing the July 14, 2017 decision, it has not made any progress obtaining payment for 80 periods of back pay in accordance with Provision 2(a). The Agency alternately blames "incomplete" documentation submitted by Complainant and DFAS for the delay, contending that "to date, WING, USPFO, and MPD have been diligent in trying to reach resolution within the constraints of DFAS requirements." The Agency describes its most recent effort as submitting the same "incomplete" documentation that DFAS previously rejected. The missing documents, which the Agency requested after the parties entered into the Agreement, are three W-2s for work Complainant did in 2011. Otherwise, it appears that the Agency has sufficient documentation to obtain payment for majority of the back-pay period.
Provision 2(a)
Under Provision 2(a), the Agency agreed to pay Complainant 80 periods of back pay from January 6, 2009 through January 30, 2012. Upon entering the Agreement, based on the Agency's stated experience working with DFAS, the expected payment deadline was May 26, 2017, yet the Agency has not made any payments or even provided an estimate for when the payments would be disbursed.
The Agency argues that it is unable to meet its obligation under Provision 2(a), as Complainant provided it with "incomplete" documentation for 2011. As a result, DFAS allegedly refused to process the Agency's back pay request. Even if true, this explanation is insufficient to preclude a finding of breach, as it violates Provision 2(b) of the Agreement. Moreover, there is no indication that the Agency lacked adequate documentation to pay Complainant's back pay for the years 2009, 2010, and the month of January 2012, yet, without explanation, it failed to do so. We find the Agency is in beach of Provision 2(a).
Provision 2(b)
Under Provision 2(b), the Agency agreed to pay Complainant back pay using the information he already provided and that payment "shall not be delayed or diminished" due to incompleteness of documentation previously provided by Complainant. We have long held that if a settlement agreement is made in good faith and is otherwise valid, it will not be set aside simply because it appears that one of the parties had made a poor bargain. See Ingram v. Gen. Serv. Admin., EEOC Request No. 05880565 (Jun. 14, 1988). The Agency entered into a valid agreement to pay Complainant's back pay based on the information he previously provided. Our reading of the Agreement, based on the plain language rule, finds Complainant is not obligated to provide any additional documentation, and the Agency must base its calculations of back pay on the documentation accessible at the time it entered into the Agreement, even if it makes specific performance more difficult for the Agency.
The Agency argues that its hands are tied because DFAS is a separate agency and "requires specific documents." Nothing in the Agreement requires the Agency to process Complainant's back-pay through DFAS. However, the Agency cannot establish that it has acted in accordance with the Agreement based on its failed attempts to process back pay through DFAS. The Agency breached Provision 2(b) of the Agreement by requesting additional back pay documentation from Complainant and ceasing meaningful compliance activity with Provision 2(a) because Complainant did not provide the requested documentation.
According to the Agency, WING's offices, specifically, SEEM, USPFO, and MPD were capable of locating funding and disbursing the specified amount of Attorney Fees and Complainant's compensatory damages within one month of learning of the Agreement. If DFAS will not process Complainant's back pay with the information available, the Agency may still achieve specific performance by using an alternate means to calculate Complainant's back pay and disburse payment in the same manner it paid its other obligations under the Agreement.
CONCLUSION
Accordingly, the Agency's decision finding that it was not in breach of the January 17, 2017 Settlement Agreement is REVERSED. The case is hereby REMANDED to the Agency in accordance with this Decision and the Order below.
ORDER (D0617)
The Agency is ordered to specifically perform its obligation under Provision 2(a) of the Agreement by paying Complainant back pay at the WG-8, step 2 level for the period from January 6, 2009 to January 30, 2012, covering a total of 80 pay periods in accordance with calculations computed in accordance with 5 C.F.R. �550.805.2 Per Provision 2(b), the Agency may not require additional back pay documentation from Complainant.
The Agency shall achieve specific performance by:
1. Within ten (10) calendar days of the date of this Decision, the Agency shall again submit a request to DFAS for back pay with interest for January 6, 2009 through December 31, 2010 and for January 2012, and any other portion of the back-pay period for which the Agency already has sufficient documentation for DFAS processing. Any portion of the back-pay period DFAS declines to process must be processed in accordance with part 2 of this Order. Per Provision 6, the payment for this back pay period must be issued within one hundred thirty (130) days of this Decision.
2. Within thirty (30) calendar days of the date of this decision, the Agency shall, if necessary, identify a funding source and an alternate resource for determining the amount of back pay plus interest owed for January 1, 2011 through December 31, 2011, and any other portion of the back-pay period DFAS declines for processing.
a. The Agency may obtain assistance in-house (e.g. Human Resources), hire a contractor, or reimburse Complainant for retaining accounting services from a CPA of his choice, to determine how much back pay (plus interest) is owed. The Agency shall notify Complainant within the thirty (30) calendar days of how it intends to proceed.
b. Payment is due within one hundred and thirty (130) calendar days of this Decision.
3. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay due Complainant, including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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 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. 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 (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
April 19, 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.
2 5 C.F.R. � 550.805; 29 C.F.R. � 1614.501(c)(1); Additional information on back pay can be found here: EEOC Management Directive 110 Chapter 11 Pt. 3, (Aug. 5, 2015) available at https://www.eeoc.gov/federal/directives/md-110_chapter_11.cfm#_Toc425745441
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120172905
9 0120172905