05970693
04-19-2000
Robert Montgomery, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Robert Montgomery v. Department of Agriculture
05970693
April 19, 2000
Robert Montgomery, )
Complainant, )
) Request No. 05970693
v. ) Appeal No. 01961506
) Agency No. 93-0629
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On April 7, 1997, Robert Montgomery (complainant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Robert Montgomery v. Daniel R. Glickman,
Secretary, Department of Agriculture, EEOC Appeal No. 01961506
(February 27, 1997). EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous decision where the
party demonstrates that: (1) the previous decision involved a clearly
erroneous interpretation of material fact or law; or (2) the decision
will have a substantial impact on the policies, practices or operation
of the agency. 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.405(b)).<1> For the reasons
set forth herein, the complainant's request is denied. On its own motion,
the Commission reconsiders the previous decision.
ISSUE PRESENTED
The issue presented is whether the previous decision correctly found
that the agency breached the settlement agreement between the parties
and whether the relief ordered was proper.
BACKGROUND
Complainant was employed with the agency as a Forestry Technician, GS-5,
at the Willamette National Forest in Oregon. In a settlement agreement
(SA) entered into on May 23, 1995, complainant agreed, inter alia, to
resign his position effective that day and to withdraw his EEO complaints
in exchange for the following terms agreed to by the agency:
1. Make a lump sum payment to Complainant in an amount equivalent to
two years annual salary, based on eighteen pay periods in duty at the
basic pay rate of GS-5, Step 5. The gross amount is $30,702.40. The net
amount of the check issued to the complainant will be approximately
$27,500. Amounts owed the government by the Complainant for FEHB
benefits, for residence in quarters and for credit card usage will
be deducted from last salary payment, lump sum annual leave and/or the
above lump sum. Paperwork to effect this payment will be submitted to NFC
[National Finance Center] within 15 days of Complainant's signature on
this agreement.
[emphasis supplied]
The record shows that the agency prepared paperwork to the NFC dated June
13, 1995, approximately one week past the 15-day period stated in the SA.
On July 17, 1995, the agency amended its paperwork to the NFC directing
that, "if the payment hasn't already been processed," it should withhold
one-quarter of the net amount to be paid to complainant in response to
a garnishment order.<2> In addition, the record shows that the money
complainant owed to the agency amounted to about $425.00.
On July 28, 1995, a check was issued to complainant in the amount of
$16,480.79.<3> In August 1995, complainant notified the agency that
it had breached the SA. Upon receiving no response from the agency,
complainant filed an appeal with the Commission. In his correspondence,
complainant contended that (1) the agency delayed in submitting documents
to the NFC; (2) had it not delayed, he would not have been assessed monies
pursuant to the garnishment order; (3) even subtracting the one-quarter
amount withheld for garnishment, the net amount received was far below
the estimated net payment of approximately $27,500.00; and (4) the agency
improperly withheld $119.00 for cleaning his government residence.<4>
The previous decision found that the agency breached the SA on the
grounds that the paperwork was submitted past the promised date and
that, without the delay, complainant would not have been assessed the
additional monies for the garnishment. Having found a breach of the SA,
the decision directed the agency to afford complainant a choice to either
reinstate his complaint, which would mandate repayment of any funds paid
in settlement and his reinstatement to the agency, or an opportunity to
pursue an additional payment from the agency, in which case the agency was
ordered to conduct a supplemental investigation as to the interpretation
of the word "approximately" in relation to the amount of $27,500.00.
Complainant has filed a request to reconsider (Request) the previous
decision, asserting his dislike of the options available to him.
He states that he is unable to return the payment and asks that his
complaint and employment be reinstated without repayment, although
he objects to returning to his former position. With regard to the
terms of the SA, complainant explains that he expected a net amount of
approximately $27,500.00. He explains that he "requested the gross and
net amount be part of the agreement" because he "wanted to know exactly
what the amount of the check would be after all deductions for taxes
and social security." He further states that the word "approximately"
was added to cover any additional amounts he owed the government not
satisfied otherwise. He emphatically states: "I would not have signed
the agreement for $16,000" and argues that it was not his fault that
the net amount, as calculated by the agency, was wrong.
ANALYSIS AND FINDINGS
In order to merit the reconsideration of a prior Commission decision,
the requesting party must submit written argument that tends to establish
that at least one of the criteria of 29 C.F.R. � 1614.405(b) is met.
The Commission's scope of review on a request for reconsideration
is narrow. Lopez v. Department of the Air Force, EEOC Request
No. 05890749 (September 28, 1989). A request is not merely a form
of a second appeal. Regensberg v. USPS, EEOC Request No. 05900850
(September 7, 1990). Having reviewed the record and submissions by the
parties, we find that complainant's request fails to meet the criteria
of 29 C.F.R. �1614.405(b). Nevertheless, having reviewed the record
before us, on our own motion we reconsider the previous decision.
Upon reconsideration, for the reasons set out below, we find that the
agency breached the SA in two regards and that complainant is entitled
to an additional payment in remedy. We find, further, that complainant
is not entitled to reinstatement of his complaint or his employment with
the agency and that, for all other purposes, the SA remains valid and
in effect.
As stated in the previous decision, it is the intent of the parties, as
expressed in their written agreement, that controls the construction of
a contract. Acree v. Department of the Navy, EEOC Request No. 05900784
(October 4, 1990). In interpreting a settlement agreement, the Commission
looks to the language of the contract to determine the intention of
the parties at the time the contract was made. Carroll v. United
States Postal Service, EEOC Request No. 05901072 (October 25, 1990).
In ascertaining the intent of the parties, the Commission relies on the
plain meaning of the words, and, if the document appears to be plain
and unambiguous on its face, its meaning will be determined from the
four corners of the instrument without resort to extrinsic evidence.
O'Farrell v. United States Postal Service, EEOC Request No. 05910518
(September 25, 1991), citing, Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984).
The previous decision found that the agency had breached the SA when
it failed to submit the financial paperwork within the 15 day-period
required by the SA. We agree with that finding and, in addition, for
the reasons stated herein, find that the agency breached the SA with
regard to the net payment to complainant.
On its face, the SA states that the agency will pay complainant a
net amount of "approximately $27,500." In no way can the agency's
final net payment to complainant of $16,480.79, even considering the
amount withheld pursuant to the garnishment order, approximate $27,500.
That the agency's calculation of the gross amount accurately represented
18 pay periods and that the deductions withheld were lawful and proper
does not mitigate its breach to complainant. Complainant's unrebutted
testimony that he sought an estimate of the net amount from the agency
prior to entering into the SA and that he relied on receipt of that
approximate amount in signing the SA support this conclusion. We find
that complainant relied on the agency's estimate of the net payment and
that he would not have signed the SA if the actual amount of the payment
(without deduction for the garnishment order) would have been made known
to him. For these reasons, therefore, we find that the agency breached
the SA with regard to the final net payment to complainant.
Upon a finding of breach, the Commission's regulations provide that it
may order specific performance or reinstatement of the complaint from
the point at which processing ceased. 29 C.F.R. �1614.504(c). In our
view, reinstatement of the complainant is not appropriate in this matter,
given complainan's admission that he cannot repay the money he received
pursuant to the SA. For this reason, the Commission concludes that
specific performance is the proper remedy herein, and we order a payment
to complainant, plus interest, in the amount of $5,344.54.<5> Further,
if complainant has been represented by an attorney, he is entitled to
reasonable attorney's fees.
For the above reasons, we find that the agency breached the SA and that
complainant is entitled to an additional payment in full relief of the
agency's breach of the SA.
CONCLUSION
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
the complainant's request fails to meet any of the criteria of 29
C.F.R. �1614.407(c). It is therefore the decision of the Commission
to deny the complainant's request. On its own motion, the Commission
reconsiders the previous decision and MODIFIES the previous decision.
There is no further right of administrative appeal on a decision of the
Commission on a Request for Reconsideration. The agency is directed to
comply with the Order, below.
ORDER
The agency is ORDERED to take the following remedial action:
Within sixty days of receipt of this decision, the agency is required
to pay complainant the amount of $5,344.54, plus interest. The agency
is further directed to submit a report of compliance, as provided in
the statement entitled "Implementation of the Commission's Decision."
The report shall include supporting documentation verifying that the
corrective action has been implemented.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)
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.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
April 19, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________ _________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The record shows that the garnishment order, dated May 25, 1995,
was a continuing obligation to complainant since December 14, 1992.
Pursuant to federal law, the agency was required to withhold 25% of his
net pay for the garnishment.
3Documents provided to complainant by the agency (and supplied by him on
appeal) indicate that mandatory deductions for FERS, FICA, federal tax,
and state tax were withheld from the gross payment of $30,702.40 in
the amount of $8,003.71. In addition, one-quarter of the net amount
($5,674.67) was withheld pursuant to the garnishment order and an
additional amount of $424.23 was taken for money owed the agency by
complainant plus $119.00 for apartment cleaning.
4The agency did not submit comments in response to complainant's appeal
or the instant request for reconsideration.
5This amount represents the difference between the actual payment
to complainant and $27,500.00, less the amount withheld pursuant to
the garnishment order ($5,674.67). We find, and complainant does not
contest, that the agency properly withheld $424.23 for amounts owed to
the government and $119.00 for cleaning his government residence from
his initial net payment.