[Redacted], Beverlee C., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Dec 14, 2021

Appeal No. 20-2100-1794 (E.E.O.C. Dec. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beverlee C.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 20-2100-1794 Agency No. DLAN-16-0144 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 17, 2021, 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 worked as a Distribution Process Worker, GS-6, at the Agency’s duty station in Norfolk, Virginia. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On July 18, 2019, Complainant and the Agency entered into a Settlement Agreement (Agreement) to resolve the matter. The Agreement provided, in pertinent part, that: (1) The Agency will cancel Complainant’s January 26, 2016 termination and reinstate her to her former position such that she receives, pursuant to the Back Pay Act (5 U.S.C. § 5596), all pay and allowances she would have received but for the termination effective January 26, 2016, including but not limited to service credit for retirement purposes, back 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. 2021001794 2 pay, interest, Thrift Savings Plan (TSP) contributions, Within Grade Step Increases (WIGIs) and all other benefits and pay she would have been entitled to, for all time from January 26, 2016 (termination date) through the date of execution of this settlement agreement…” By letter to the Agency dated October 29, 2020, Complainant alleged that the Agency was in breach of the Agreement and requested that the Agency implement its terms. Specifically, Complainant alleged that the Agency failed to provide itemization of interest for the payments made on August 31, 2019, totaling $77,959.20. In addition, she alleged that the backpay period from September 2017 to July 2019, did not address interest owed, and that no backpay, interest, or TSP was paid for the period of January 2016 through August 2017. She also alleged that her annual and sick leave balances had not been restored. Finally, Complainant indicated that she received a letter from Defense Finance and Accounting Services (DFAS) claiming that she owed $12,329.17 for the period of October 27, 2018 through July 6, 2019. The Agency issued a decision concluding that it was not in breach of the Agreement. The Agency determined that the Agreement did not indicate that a breakdown or itemization of backpay was required. Nonetheless, the Agency requested an audit from DFAS showing the computation for each pay period from 2016 to 2019, including interest and TSP benefits. It determined that the amounts due were paid, and annual and sick leave were restored; as such, the Agency determined that it was in compliance with Term 1 of the Agreement. Regarding the letter from DFAS claiming that Complainant owed $12,329.17, the Agency noted that this debt was not a part of the Agreement. However, DFAS provided an explanation. In a December 15, 2020, explanation provided by DFAS, DFAS explained that after deducting the amount already collected and applied towards Complainant’s debt, $8,293.65, a remaining $12,329.72 was still owed. Neither party has submitted arguments on appeal. 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 (Dec. 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 (Dec. 2, 1991). 2021001794 3 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). It is Complainant's burden to demonstrate the Agency's noncompliance by a preponderance of the evidence. See Moore v. Dep't of the Navy, EEOC Appeal No. 01931395 (Apr. 19, 1993), req. for reconsideration denied, EEOC Request No. 05930694 (Apr. 7, 1994). However, we note that the Commission has held that the agency has the burden of providing evidence and/or proof to support its final decisions. See O'Malley v. U.S. Postal Serv., EEOC Appeal No. 0120064540 (Mar. 12, 2008) citing Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993). In this instant case, the Agency conducted an inquiry in order to determine the computation from each pay period from 2016 to 2019, including interest and TSP benefits. The computation includes the amount of interest encompassed in the August 31, 2019, payment of $77,959.20 documented as $4,353.59. The Agency also provided a spreadsheet which includes data beginning on February 6, 2016 and ending on August 17, 2019. This data indicates that payments made to Complainant date back to February 2016, therefore encompassing the pay periods of January 2016 through August 2017. The Agency also provided documentation confirming the restoration of Complainant’s annual and sick leave. In an email dated December 14, 2020, the Agency’s Human Resources Department confirmed that 347 hours of annual leave had been restored to Complainant, and that on December 15, 2020, she had 406.5 hours of sick leave available. The email included a screen shot documenting the restoration of annual leave, as well as a Master Leave History document with Complainant’s sick leave balance highlighted. Finally, the Agency included a memorandum for the record dated December 15, 2020, providing the calculations which resulted in a debt of $12,329.17 owed by Complainant. Ultimately, the total backpay owed to Complainant was $139,357.92, with a total interest of $4,459.40. Complainant’s outside earnings equaled $80,742.72. She was paid a total of $83,703.72 in backpay and interest and had an outside overtime earnings of $5.76. Complainant owed a debt of $20,623.36. Complainant’s debt of $12,329.17 is the result of adding the Complainant’s backpay and interest and subtracting that number from the sum of her outside earnings and her total pay, and then subtracting the amount already collected and applied towards her debt. The Agency has shown that it complied with the Agreement dated July 18, 2019, by providing a computation of the backpay provided to Complainant, as well as indicated that her annual and sick leave balances were restored. The Agency also provided an explanation of the additional debt of $12,329.17 owed by Complainant. On appeal, Complainant has not challenged any of the Agency’s computations or explanations. Therefore, we determine that Complainant has not shown that the Agency breached Term 1 of the Agreement. 2021001794 4 CONCLUSION Accordingly, we AFFIRM the Agency’s final decision finding of no breach of the Agreement. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 2021001794 5 Any supporting documentation must be submitted together with the 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 December 14, 2021 Date