0420160001_0120182525
08-15-2018
Reuben D.,1 Petitioner/Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Reuben D.,1
Petitioner/Complainant,
v.
Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.
Petition No. 0420160001
Appeal No. 0120182525
DECISION ON PETITION FOR ENFORCEMENT
On November 6, 2015, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the Agency's compliance with an Order set forth in EEOC Request No 0520130469 (Sep. 27, 2013). In addition, on March 15, 2016, Petitioner filed an appeal of the Agency's February 5, 2016 determination that it was in compliance with the parties May 14, 2012 settlement agreement.
ISSUES PRESENTED
1. Whether the Agency complied with the Commission's September 27, 2013, Order; and
2. Whether the Agency established that it complied with the May 14, 2012 settlement agreement.
BACKGROUND
Petitioner worked as a Criminal Investigator, GS-13, at the Agency's Office of Special Investigations Joint Terrorism Task Force in Linthicum City, Maryland. Petitioner filed a complaint in which he alleged that the Agency discriminated against him on the bases of disability (physical) and reprisal for prior protected EEO activity when on December 8, 2009, Agency management allegedly made discriminatory comments about his monocular vision as a reason for his proposed removal from his position. Prior to a scheduled hearing before an Equal Employment Opportunity Administrative Judge, Petitioner and the Agency entered into a settlement agreement on May 14, 2012. The agreement provided, in pertinent part, that:
B. The Agency shall provide back pay to Complainant in the amount he would have earned in 2006-2010, with LEAP at the corresponding rates, less disability amounts received from OWCP, with interest.
1. For purposes of this calculation, Complainant acknowledges that he did receive LEAP at the 2006 rate from OWCP for all periods except April 26, 2010 to May 16, 2010.
2. For purposes of this paragraph, the Agency acknowledges that Complainant was not paid at all during the time April 26, 2010 through May 16, 2010.
3. For purposes of this paragraph, the Agency acknowledges that scheduled award payments are not to be considered.
4. Complainant will also be paid NSPS bonuses for NSPS years 2008-2010 in the amounts of $1,171,130, $809.00, and $451.00, respectively. Complainant acknowledges that the Defense Finance and Accounting Center (DFAS) will calculate OPM estimated earnings, subtract OWCP payments, and the Agency is liable for the difference.
C. During the period between May 16, 2010 and the effective date of the agreement, certain additional personnel actions would have occurred, as follows:
1. Complainant would have converted out of NSPS on July 18, 2010. Because he had just been promoted, there would have been no pay adjustments in July 2010.
2. The Complainant's next within grade increase would have occurred May 22, 2011, placing the Complainant at GS-14, Step 4.
3. Complainant's next within grade increase will occur on or about May 22, 2013. The Agency shall provide back pay to Complainant in the amount he would have earned year to year, with LEAP at the corresponding rates, less amounts received for OWCP, if any, with interest. There shall be no offset for scheduled award payments.
D. Complainant agrees to have the following deducted from his back pay; all Federal, state and local taxes (not to include Agency's share of Social Security and Medicare), and any other ordinary withholdings, including but not limited to Complainant's contributions to FLERS retirement; Social Security; Medicare; Complainant's contributions to TSP at previously elected rates, provided, however, such elections are within the IRS allowance for maximum elective deferrals for each year; and any increased amounts withheld for FEGLI premiums. The Agency agrees to make the required agency contributions to FLERS retirements and Social Security and the maximum employer contribution to TSP in accordance with government regulations and Complainant's contributions (e.g., maximum TSP contribution by employer, provided Complainant's previous TSP elections reach the threshold for maximum employer matching contributions).
Thereafter, Petitioner maintained that the Agency had not fully complied with the settlement agreement. He appealed to the Commission and, in EEOC Appeal No. 0120130367 (Apr. 9, 2013), the Commission agreed with Complainant. The Commission ordered a supplement investigation and vacated the Agency's determination that it did not breach provisions B, C, and D of the settlement agreement. The Agency's finding that it was in compliance with the remaining provisions of the agreement (provisions E, K, and Q) was affirmed.
The Agency was ordered to:
(1) Conduct a supplemental investigation to develop an adequate factual record regarding compliance with provisions (B), (C), and (D) of the May 14, 2012 settlement agreement. Specifically, the Agency was to obtain evidence which addressed whether:
(a) Complainant was paid NSPS bonuses for NSPS years 2008-2010, as required in provision (B)(4).
(b) The relevant personnel actions, set forth in provision (C), are reflected in the Agency's calculations.
(c) LEAP payments are included in the Agency's calculations;
(d) Appropriate deductions were made, pursuant to provision (D).
Such evidence is not limited to, affidavits from Human Resource officials familiar with the Complainant's agreement and necessary calculations and reports illustrating the necessary computations.
(2) The Agency shall complete its supplemental investigation and issue a new final decision, together with the appropriate appeal rights, within ninety (90) calendar days of the date the decision became final, unless the matter was otherwise resolved prior to that time. A copy of the Agency's new final decision must be sent to the Compliance Officer as referenced below.
Petitioner filed a request with the Commission seeking reconsideration of its determination that the Agency had complied with provision Q. Petitioner's request was denied in EEOC Request No. 0520130469 (Sep. 27, 2013), and the Agency was again directed to comply with the above Order.
On January 24, 2014, Petitioner filed the instant Petition for Enforcement alleging that the Agency had not conducted a supplemental investigation, nor issued a new final decision. As a sanction for its untimeliness, Petitioner requested that the Agency be found to have breach the parties' settlement agreement, and ordered to pay Petitioner all back-pay, benefits and interest outstanding and provide sufficient evidence of the basis of such payments within 30 days, and awarded attorneys' fees and costs associated with filing his Formal Notice of Settlement Breach and subsequent appeals with the EEOC.
On February 6, 2016, the Agency issued a final decision in his matter finding that, after conducting its supplemental investigation, it was in full compliance with the parties May 14, 2012 settlement agreement. Specifically, the Agency found that:
Clause (la) of the EEOC/OFO decision states, "[c]omplainant was paid NSPS bonuses for NSPS years 2008-2010, as required in provision B(4)" of the settlement agreement. (Attachment 2, p.7). Reference to the attached Notification of Personnel Action (SF-50) shows that the complainant was paid National Security Personnel System (NSPS) bonuses for NSPS years 2008-2010 in the amounts of $1171.11, $809.00, and $451.00 respectively, pursuant to the settlement agreement. (Attachments 5-7).
Clause (lb) of the EEOC/OFO decision states, "[t]he relevant personnel actions, set forth in provision (C), are reflected in the Agency's calculations." Reference to the attached SF-50s confirms that the complainant converted out of NSPS effective May 17, 2010, and was promoted from a Step 02 to a Step 03 effective the same day. (Attachment 8). The Complainant received within-grade increases (WG/s) from Step 3 to Step 4 and from Step 4 to Step 5 effective May 22, 2011, and May 19, 2013 respectively. (Attachments 9-10). In addition, the complainant's erroneous occupation code/series of 0132 was cancelled effective May 22, 2011. (Attachment 11).
Clause (lc) of the EEOC/OFO decision states, "LEAP payments are included in the Agency's calculations." The Complainant was paid $82,467.40 for Law Enforcement Availability Pay (LEAP) pay from October 16, 2006, through May 15, 2010, which was the back-pay period agreed upon in the settlement agreement. (Attachment 14, pp. 1-2; Attachment 15; Attachment 4, p. 2). The complainant was paid $382,029.50 in gross back pay for regular earnings. (Attachment 14, p. 1). The Complainant was paid $59,351.45 in interest earned on the back pay pursuant to guidance issued by the Office of Personnel Management (OPM) and 5 CFR 550.805(e). (Attachments 12 & 13).
Clause (ld) of the EEOC/OFO decision states, "[a]ppropriate deductions were made, pursuant to provision (D)." A total of $123,625.34 in deductions were made to complainant's back pay compensation, to include Office of Workers' Compensation Programs (OWCP) payments (not including OWCP scheduled award payments), complainant's TSP contributions, FLERS retirement, social security, Medicare, and Federal and state taxes. (Attachment 15).
With respect to whether it complied with the Commission's September 27, 2013, Order, the Agency maintained that the supplemental investigation, the attached data and documentation, and its decision demonstrated the Agency's compliance with the Commission's decision issued on September 27, 2013. The Agency did not explain in its final decision why it took more than two (2) years to comply with the Commission's September 27, 2013, Order.
On March 15, 2016, Petitioner filed a "Request for Reconsideration" of the Agency's final decision. Petitioner erroneously thought that the Agency's final decision was a decision from the Commission. Consequently, we have deemed Petitioner's March 15, 2016 submission as an appeal from the Agency's February 5, 2016 determination of compliance and have designated it EEOC Appeal No. 0120182525. Petitioner maintained that the Agency had not fully complied with its back-payment obligation and the settlement agreement because:
the Agency-provided totals for "OWCP Payments Deducted from Back Pay' which erroneously included all of the Schedule Award payments Complainant received during the listed time periods, despite the requirement and their notations that Schedule Award payments were not to be included in deductions from Complainant's back pay. From 2006 to 2010, the Agency incorrectly deducted Complainant's Schedule Award payments in the total amount of $52,949.5 from the Complainant's back pay award. Complainant is entitled to that amount, plus interest and attorneys' fees for the Agency's error.
The Agency noted, in response, that on April 29, 2016, it sent Petitioner's attorney information indicating that the Agency had paid the above amount in dispute. On May 6, 2016, after reviewing the information provided, Petitioner's attorney indicated that he believed that Petitioner had an obligation to withdraw the request as the Agency had complied with that provision. The Agency provided a copy of that email for the record.
Subsequently, Petitioner argued that the terms of the settlement agreement were breached by the Agency when it did not provide proof of back payments in full and detailed documentation within the required sixty (60) day time period; and after 120 days, and after receipt of his notice of non-compliance with the settlement agreement it failed to make contact with DFAS to notify DFAS of this non-payment and to encourage DAFS to expedite the completion of the payment. Consequently, Petitioner asks for additional attorney's fees as a sanction for the Agency's alleged failure.
ANALYSIS AND FINDINGS
EEOC Petition No. 0420160001
EEOC Regulation 29 C.F.R. � 1614.503(a) provides that an aggrieved person may petition for enforcement of an order issued by the Commission under its appellate jurisdiction. In this case, Petitioner, on January 24, 2014, alleged that the Agency had not complied with the Commission's order in EEOC Request No 0520130469 (Sep. 27, 2013). We agree. The Agency was given ninety (90) calendar days to complete its supplemental investigation and to issue a new decision. As noted above, the Agency did not comply with the Commission's Order until February 5, 2016. At no time has the Agency explained why it took more than two (2) years to comply with our Order. The Agency, we note, did not file a request to reconsider the decision in EEOC Appeal No. 0120130367 maintaining that the 90-day timeframe was not enough time for it to meet its obligations.
The Agency, in response to Petitioner's assertion that it violated the settlement agreement with regard to the amount of time it took to get documentation from DFAS, stated that "while the Agency will concede that it took a while to get the necessary documents from DFAS, the agreement clearly indicated that DFAS delays would not result in a breach." While this assertion might be relevant with regard to whether the Agency violated the settlement agreement, we do not find it probative on the issue of whether the Agency complied with our Order. At the outset, we note the lack of supporting evidence that "it took a while to get documentation," e.g., affidavits from Agency officials with knowledge. Furthermore, the Agency's supplemental investigation consists mostly of documents that existed prior to our Order, including the Report of Investigation of the original Agency investigation, without some probative evidence indicating why it took so long to complete the supplemental investigation and to issue a final decision, we will not speculate that the Agency presented an adequate justification for not complying with our Order.
In the instant case, we find that Petitioner is a prevailing party with respect to the instant petition for enforcement. To establish an entitlement to attorney's fees, Petitioner must first show that he is a prevailing party. CRST Van Expedited, Inc. v. EEOC., 136 S.Ct. 1642 (2016). A prevailing party for this purpose is one who succeeds on any significant issue, and achieves some of the benefit sought in bringing the action. Davis v. Dep't of Transportation, EEOC Request No. 05970101 (Feb. 4, 1999) (citing Hensley v. Eckerhart, 461 U.S. 427, 433 (1983)). The Agency did not comply with its obligation to complete the supplemental investigation and to issue a final decision within ninety (90) calendar days of our decision in EEOC Request No. 0520130469 (Sep. 27, 2013) becoming final. See Terrell v. Dep't of Health and Human Serv., EEOC Petition No. 04950018 (Nov. 7, 1996) (complainant who successfully obtained compliance with a Commission order through a petition for enforcement was entitled to be reimbursed for attorney's fees and costs incurred in processing the petition); see also Teal v. U.S. Postal Serv., EEOC Petition No. 04990026 (Aug. 7, 2000) (ordering the agency to pay attorney's fees for a petition for enforcement and conduct a supplemental investigation when it was unclear as to whether the agency, among other things, complied with the Commission's order to properly award back pay). Accordingly, we GRANT Petitioner's petition for enforcement.
EEOC Appeal No. 0120182525
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).
Upon review of the record, we find that the Agency has shown that it is in compliance with the parties May 14, 2012, settlement agreement. There is no dispute that the documentation provided by the Agency, pursuant to the supplemental investigation, established that the Agency has complied with the provisions of the settlement agreement that were at issue. Complainant's appeal was predicated on a belief that the Schedule Award payments were included in the deductions from Complainant's back pay. We find that this issue was resolved in the Agency's favor. As noted above, the record contains an email from Complainant's attorney indicating that he now believed that Complainant had an obligation to withdraw the appeal as the Agency had complied with that provision. To the extent that Complainant, on appeal, maintained that additional provisions of the settlement agreement were violated, we do not find it appropriate to address them in this appeal. As was noted above, the Commission found in its September 27, 2013 decision that the Agency had established Agency compliance with the settlement agreement, except for provisions B, C and D. Complainant's contention that the Agency violated the time frames contained in the settlement agreement are therefore new arguments raised for the first time on appeal.
CONCLUSION
Upon review of the record, we find that the Agency did not comply with our September 27, 2013, Order. Therefore, we GRANT the January 24, 2014, petition for enforcement. The Agency will comply with the Order below. With regard to the Agency's February 5, 2016, determination that it has complied with the parties May 14, 2012 settlement agreement, we AFFIRM the Agency's decision.
ORDER
Within one hundred and twenty (120) calendar days of this decision, the Agency shall:
Pay Petitioner attorney's fees for the petition of enforcement on which he was successful: EEOC Petition No. 0420160001 as set forth in the below-entitled paragraph, "Attorney's Fees."
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 evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H1016)
If Petitioner has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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 the date this decision was issued. 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
The Commission's decision regarding EEOC Petition No. 0420160001 is final. There will be no reconsideration of that decision. The Commission may, in its discretion, however, reconsider the decision in this case concerning EEOC Appeal No. 0120182525, i.e., whether the Agency has complied with the May 14, 2012 settlement agreement, if 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 (T0610)
This decision affirms the Agency's final decision in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. signature
Carlton M. Hadden, Director
Office of Federal Operations
_8/15/18_________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
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