U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC 20507 Kiara R.,1 Complainant, v. Alejandro Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Request No. 0520180135 Appeal No. 0120172774 Agency No. HSTSA250642016 DECISION ON REQUEST FOR RECONSIDERATION Both Complainant and the Agency requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120172774 (October 31, 2017). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. §1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. §1614.405(c). After reconsidering the previous decision and the entire record, the Commission finds that the Agency’s request meets the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to GRANT the Agency’s request. However, we find Complainant’s request does not meet the requisite criteria, and we DENY Complainant’s request. 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 0520180135 BACKGROUND In the previous decision, the Commission determined the Agency breached the following provision of an April 27, 2017 settlement agreement: The Agency will pay Complainant Seventy-Four Thousand dollars ($74,000.00). Such payment will be made by electronic fund transfer to Complainant’s bank account as soon as practicable but no later than ninety (90) days from the date the Agency receives Complainant’s banking information…. Specifically, the Commission found Complainant had received only $72,076.83 of the agreed upon $74,000.00 figure expressly identified in the settlement agreement. The Commission noted the Agency attempted to justify the lesser amount it paid by stating that, although it issued a check for $74,000.00, the finance department offset the amount by $1,923.17 for health insurance premiums. The Commission noted Agency officials were aware of the possibility that Complainant may have owed the government $1,923.17, but failed to expressly identify the possibility that it, or other government related entities, might attempt to recoup debts owed. Thus, the Commission found the Agency failed to comply with the terms of the settlement agreement and ordered the Agency to issue Complainant payment of $1,923.17. In the previous decision, the Commission also noted that Complainant had alleged that, in connection with her settlement agreement, the Agency was demanding she pay $3,228.24 as repayment for alleged advanced-leave payments. Regarding the demands for Complainant to pay the Agency $3,228.14, the Commission found that the Agency was attempting to go beyond the agreed-upon terms of the April 28, 2017 settlement agreement. The Commission determined it would not entertain the Agency’s attempts to obtain repayment of $3,228.24 through the prior appeal. On request for reconsideration, the Agency argues the Commission’s decision is contrary to Commission case law regarding debts owed to the federal government. The Agency requests the Commission to reconsider the sole issue that it entertained on appeal - the Department of Treasury’s offset of a $1,923.17 debt owed to the federal government after the Agency processed a $74,000.00 payment to Complainant. The Agency notes that it agreed to pay Complainant $74,000.00, which it did on June 30, 2017, through the U.S. Coast Guard Finance Center. The Agency states that, after it tendered the $74,000.00 electronic payment, the Department of the Treasury returned it to the Agency because Complainant owed a $1,923.17 debt to the federal government. The Agency explains that the Department of the Treasury then reprocessed the Agency’s $74,000.00 payment, offset Complainant’s $1,923.17 debt, and issued Complainant a net payment of $72,076.83. In Complainant’s Request and Response to Request for Reconsideration, Complainant requests the Commission to affirm its prior decision finding the Agency failed to comply with the settlement agreement when it deposited $1,923.17 less than the $74,000.00 it had promised to deposit into her bank account. 3 0520180135 In addition, Complainant argues that the disputed “advanced sick leave” was part of her underlying claim and evidence of alleged unlawful employment practices in the settled case. Thus, she claims the Agency is precluded from relitigating this issue. Complainant requests the Commission to instruct the Agency (or those purportedly acting on the Agency’s behalf) to remove all alleged “leave-related debt” and cease and desist all demands for repayment of “advanced leave” allegedly still owing and valued at $3,238.24. In response to Complainant’s request for reconsideration, the Agency notes that Complainant’s $3,238.17 debt arose when Complainant resigned from the Agency without repaying the sick leave that had been advanced to her. The Agency argues that the settlement agreement does not prohibit the Agency’s collection efforts. Further, the Agency argues that Office of Personnel Management (OPM) regulations require than an agency to obtain satisfaction of debts due to advanced sick leave when an employee separates. 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 Defense, 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 (Aug. 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). 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 the present case, the parties agreed the Agency would pay $74,000.00 by electronic deposit to Complainant’s bank account. The record reveals the U.S. Coast Guard Finance Center (FINCEN) processes the Agency’s settlement payments. These payments also go through the U.S. Department of Treasury before the funds are deposited to the recipient’s bank account. The record reveals that, at the Agency’s instruction, FINCEN processed a direct deposit payment from the Agency to Complainant in the amount of $74,000.00. Subsequently, Treasury returned the $74,000.00 payment to the Agency with the message, “EFT Payment Returned due to Offset.” The record reflects that, on June 30, 2017, the Treasury processed a payment in the amount of $72,2076.83. Upon review, we find that the Agency has not breached the terms of the settlement agreement where a deduction was taken to account for health-insurance premiums owing to the Agency. See Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120172917 (Dec. 5, 2017) (finding no breach where Agency provided documentation that it had initiated full lump sum payment in accordance with settlement agreement despite agency stating Treasury Offset Program 4 0520180135 had recouped a portion of the sum due for a debt; noting settlement agreement did not specify that the lump sum payment would not be subject to Treasury offset); Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120141895 (Oct. 10, 2014) (finding no breach where Agency issued an electronic deposit to Complainant’s credit, but withdrawn by another entity to offset a claimed debt); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120073298 (Nov. 26, 2007) (finding no breach where settlement agreement provided the agency would waive collection of any sums Complainant owed the agency and OPM reduced complainant’s retirement benefits; noting no evidence in the file that the Agency was attempting to collect a waived debt but rather that OPM was attempting to collect forgiven debt on behalf of the government). Accordingly, we find that the Agency did not breach the referenced provision of the settlement agreement, and we will affirm the Agency’s final decision finding no breach of the settlement agreement. Next, we address Complainant’s contention that the Agency be ordered to cease and desist all demands for repayment of the $3,228.24. We note that the settlement agreement does not contain any provisions dealing with debt repayment. Upon review, we find that we properly declined to entertain the Agency’s attempts to obtain repayment of $3,228.24 on appeal. We note that the merits of the underlying debt are not, and never have been, before the Commission. CONCLUSION After reconsidering the previous decision and the entire record, the Commission finds that the Agency's request meets the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to GRANT the Agency’s request. The decision of the Commission in Appeal No. 0120172774 is REVERSED and we now AFFIRM the Agency’s finding of no breach of the settlement agreement. We find that Complainant’s request fails to meet the criteria of 29 C.F.R. §1614.405(c), and it is the decision of the Commission to DENY Complainant’s request. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 5 0520180135 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: /s/Rachel See ______________________________ Bernadette B. Wilson’s signature Rachel V. See Acting Executive Officer Executive Secretariat August 24, 2021 __________________ Date
