U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Catherine P.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Executive Office of the U.S. Attorneys), Agency. Appeal No. 2021001118 Agency Nos. USA-2012-00560 (Complaint 1), USA-2013-00204 (Complaint 2), USA-2017- 0041 (Complaint 3), & USA-2019-01029 (Complaint 4) Hearing Nos. 551-2014-00068X & 550-2018-00077X DECISION On December 3, 2020, Complainant, who no longer is represented, filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a November 5, 2020 final Agency determination (FAD) finding that it complied with the term of the settlement agreement that 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 equal employment opportunity (EEO) Complaints 1 and 2, Complainant was employed by the Agency as an Information Technology (IT) Specialist, GS- 2210-12 at the United States Attorney's Office for the District of Oregon in Portland, Oregon. On March 7, 2012, Complainant filed Complaint 1. On February 15, 2013, she filed Complaint 2 partly about wages since 2005 - a reference to not being a GS-13 and/or GS-14. 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. 2021001118 2 On August 6, 2014, the Agency terminated Complainant for failure to demonstrate acceptable performance. Upon her termination in August 2014, the Agency paid her the cash value of her annual leave balance - 200.75 hours. Complainant appealed to the Merit Systems Protection Board (MSPB), which in an initial decision on December 23, 2016, reversed the removal and found it discriminatory based on age and sex. The MSPB ordered that in the event either party filed a petition to the Board for review, the Agency provide interim relief, i.e., reinstatement, albeit with no back pay or benefits for the period from Complainant’s termination to her reinstatement. Both parties filed petitions to review. The Agency submitted documentation to the Board that it gave Complainant interim relief - reinstatement effective December 23, 2016, with pay and benefits commencing then. Because the Board lacked a quorum, it never acted on the petitions for review. Complainant subsequently filed Complaints 3 and 4. On November 8, 2019, Complainant and the Agency entered into a settlement agreement to resolve the Complaints 1 - 4, and the pending MSPB case. This was done before an EEOC Administrative Judge. The settlement agreement provided, in pertinent part, that: 1.b.1. Retroactive Promotion. The Agency agrees to retroactively promote [Complainant] pursuant to the following estimated schedule: GS-13, Step 6, effective pay period 15 of 2014 [July 27, 2014]; GS- 13, Step 7 effective pay period 15 of 2015 [July 26, 2015]; and GS- 13, Step 8 effective pay period 15 of 2016 [July 24, 2016]. 1.b. … The Parties agree… that the… sum… $585,000… shall be used by the Agency to implement a retroactive promotion to GS-13, Step 8, per Paragraph l.b.1 [above], with the remaining amount ("final disbursement”) to be paid… per Paragraph 1.d below. All… amounts to be paid in connection with the retroactive promotion will be allocated as back pay and back benefits, and will include appropriate deductions and withholdings… in accordance with U.S. Office of Personnel Management (“OPM") regulations…. 1.d. Final disbursement. The Agency agrees to pay [Complainant] the remaining sum following all deductions, allocations and contributions for the retroactive promotion as set forth above in Paragraph 1.b. The final disbursement is estimated to be $274,210 (which does not account for TSP breakage or all taxes). See Attachment A…. Attachment A consisted of gross biweekly pay owed Complainant with interest calculations broken down by each pay period from August 7, 2014 - November 9, 2019. In the settlement agreement, Complainant agreed to retire. When she did, the Agency paid her the cash value of the annual leave balance she earned after her reinstatement to when she retired - 376 hours. Had Complainant been employed by the Agency after she was terminated in August 2014, to when she was reinstated in December 2016, she would have earned 522 hours of additional annual leave. 2021001118 3 By letter to the Agency dated October 2, 2020, Complainant alleged that the Agency breached the settlement agreement by not restoring and giving her the cash value of the 522 hours of annual leave she was entitled to if the Agency, as agreed, applied OPM regulations on the calculation of back pay benefits.2 In its November 5, 2020 FAD, the Agency concluded as follows. The settlement agreement did not contain a term requiring it to restore the 522 hours of annual leave, nor did Attachment A to the settlement agreement include a column, as it had in earlier negotiations on restoring these hours. While OPM Regulation 5 C.F.R. Part 550, subpart H addresses how to calculate back pay, it only applies when there has been a determination by an appropriate authority that an employee has been subjected to an unjustified personnel action. In this case, back pay is being paid pursuant to a settlement, so the OPM back pay regulations do not apply. The Agency also found that evidence outside the settlement agreement shows that the parties agreed not to include in the settlement agreement the restoration of 522 hours annual leave. The instant appeal followed. On appeal, Complainant reiterates the contentions in her breach letter, and adds she did not agree to waive the 522 hours of annual leave. She also adds that under OPM regulation 5 C.F.R. § 550.805(e)(2)(iv), which regards computing back pay, the lump sum payment with her August 2014 termination to her for her 200.75 annual leave balance should have been obtained back from her by the Agency, the 200.75 hours restored, and then paid to her as a lump sum at her higher wage rate upon her retirement. In opposition to Complainant’s appeal, the Agency counsel argues that under the settlement agreement, Complainant is not entitled to the restoration of the 522 hours of annual leave.3 2 Complainant also alleged that the Agency improperly deducted from the $585,000 in the settlement agreement its 1% Thrift Savings Plan (TSP) contribution. In the FAD, the Agency found that as of the date thereof, it had not completed all the complex calculations necessary to respond to this allegation and needed more time to respond. Regarding this matter, Complainant writes she reserves the right to address this issue once the Agency notifies her of its final decision on the matter. As this matter is not before us, we will address it. 3 In its FAD, the Agency found that Complainant did not timely file her breach claim. On appeal, Complainant disputes this. In opposition to Complainant’s appeal the Agency does not maintain Complainant untimely claimed breach. Accordingly, we need not address this matter further. 2021001118 4 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). In opposition to Complainant’s appeal, the Agency argues that the terms of the settlement agreement unambiguously do not provide for the restoration of the 522 hours of annual leave. While we agree that the terms of the settlement agreement on this matter are unambiguous, we disagree with the Agency’s reading of these terms. The terms explicitly indicate that the back pay with benefits period includes the duration from Complainant’s termination to her reinstatement and it will be paid in accordance with OPM regulations. Under OPM back pay regulations, back pay and back benefits includes annual leave. Complainant argues that the Agency breached the settlement agreement by not applying 5 OPM Regulation C.F.R. § 550.805(e)(2)(iv) regarding her 200.75-hour annual leave balance paid to her as a lump sum with her termination in August 2014. The regulation states: (e) In computing the net amount of back pay… an agency must make the following offsets and deductions…. (2) Any erroneous payments received from the Government as a result of the unjustified or unwarranted personnel action… must be returned…. Such payments must be recovered from the back pay award in the following order: … (iv) A lump-sum payment for annual leave (i.e., gross payment before any deductions). In Eaton v. Airforce, 55 M.S.P.R. 12, 14 (1992), the MSPB held that when an unjustified or unwarranted separation is cancelled and the employee is restored to duty, the lump-sum payment for annual leave is considered to be an erroneous payment and must be set off against the employee's back pay award and the annual leave recredited to the employee. Based on the above, we agree with Complainant. 2021001118 5 The FAD is REVERSED. ORDER Within 90 calendar days of the date of this decision, the Agency shall: 1. Make a lump sum payment to Complainant, with interest accruing from the date she retired, for the annual leave she would have earned had she continued to be employed by the Agency after her termination in August 2014, to her reinstatement in December 2016. 2. To the extent it has not already done so, deduct the lump sum payment made to Complainant with her August 2014 termination for her 200.75-hour annual leave balance from her back pay (which can include the lump sum amount in ¶ 1 above) and if there are insufficient back pay funds to deduct from solicit the remaining from her, then to the extent the lump-sum was deducted/repaid restore the 200.75 leave balance to Complainant and convert it to a lump sum payment at her rate of pay when she retired, with interest accruing on the difference between the two lump sums from the date she retired. 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 and other benefits due Complainant discussed in this decision, including evidence that the corrective action has been implemented. ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he 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 receipt of this decision. 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 (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). 2021001118 6 The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2021001118 7 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. 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 (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. 2021001118 8 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 June 3, 2021 Date
