0120180970
05-02-2018
Romaine H,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Romaine H,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120180970
Agency No. BOP20170672
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's January 4, 2018, 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 Respiratory Therapist ("RT"), GS-08, at the Federal Medical Center Carswell ("FMC Carswell") at the Naval Air Station in Fort Worth, Texas.
Complainant was one of three RTs employed by the Agency. On October 13, 2016, she learned that the RT hired before her (white, male) and the RT hired after her (white, female) were both hired as GS-8s, whereas Complainant (African American, female) was hired as a GS-7. Complainant notified her supervisor, and on April 8, 2017, her position was reclassified to GS-8. Complainant inquired about back pay to make up the difference in earnings during her years at GS-7. In an April 20, 2017 email, the FMC Warden informed Complainant that she was not eligible for back pay because her position had previously been classified as GS-7.
Believing she had been discriminated against on the bases of race, sex and reprisal, Complainant contacted an EEO Counselor. On May 13, 2017, she elected to resolve the matter through Alternative Dispute Resolution ("ADR").
On August 24, 2017, Complainant and the Agency entered into a settlement agreement ("the Agreement"), which, in relevant part, provided:
2.1 60 hours of annual leave will be added to [Complainant's] Time and Attendance to be completed by the end of pay period 19.
2.2 60 hours of sick leave will be added to [Complainant's] Time and Attendance to be completed by the end of pay period 19.
2.3. FMC Carswell Warden will submit the student loan repayment memorandum for [Complainant] during the next open enrollment time period after August 24, 2017 in accordance with BOP PS3530.02. [Complainant] will be notified in writing by [the Human Resources Manager ("HRM")] of the date that the loan repayment memorandum is submitted.... If the repayment agreement is approved and all eligibility requirements as specified in PS3530.02 are met, before the student loan repayment may be paid, [Complainant] must sign a student loan agreement... If the student loan repayment is approved, and three years after such approval, in order to extend repayments beyond the 36 months, [Complainant] must sign another Student Loan Repayment Agreement ...in accordance with PS3530.02.
2.4. FMC Carswell Warden will submit the request for a special rate table to the South Central Regional Director for the Respiratory Therapist ("RT") position by October 31, 2017 to reflect comparable private sector RT positions in the DFW area.
Complainant contacted the Agency, alleging that it was in breach of the Agreement, and requesting specific implementation of its terms. Specifically, Complainant alleged that the Agency's Human Resources Manager ("HRM") failed to follow Agency procedure in implementing the Agreement, resulting in delayed compliance for Parts 2.1 and 2.2, and missed deadlines relevant to Parts 2.3 and 2.4. In its January 4, 2018 decision, the Agency concluded that it was in substantial compliance with the terms of the Agreement, and therefore, no breach occurred. Complainant raised the instant appeal.
On March 7, 2018, Complainant updated her breach allegation in response to a February 22, 2018 letter from the Agency informing Complainant that she did not qualify for student loan repayment, which it requested on her behalf pursuant to Part 2.3 of the Agreement. Complainant argues that Agency's decision constitutes breach because the Agency failed to consider her student loan repayment request in accordance with BOP PS3530.02.
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 (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. United States 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); Complainant v. United States Postal Serv., EEOC Appeal No. 0120140143 (Feb. 20, 2014).
As a preliminary matter, we note that some of Complainant's appellate arguments reference statements that were allegedly made during mediation. Because confidentiality is essential to the success of all ADR proceedings, the Commission will not consider any statements made during mediation in this decision. Confidentiality is considered one of the "Core Principles" of ADR. See Nakesha D. v. Dep't of the Army, EEOC Appeal No. 0120161782 (Oct. 11, 2016). We have long reasoned that "[p]arties who know that their ADR statements and information are kept confidential will feel free to be frank and forthcoming during the proceeding, without fear that such information may later be used against them." See EEOC Management Directive for 29 C.F.R. Part 1614., Ch. 3 � II.a.3 (Aug. 5. 2015) citing the Alternative Dispute Resolution Act of 1996 ("ADRA") codified as 5 U.S.C. �574.
Provisions 2.1 and 2.2 - Restoration of Leave
Complainant alleges breach of Provisions 2.1 and 2.2, which required HRM to restore 60 hours each of annual and sick to Complainant's account by Pay Period 19. HRM issued an update letter to Complainant on October 13, 2017, which, among other things, confirmed that the leave described in Provisions 2.1 and 2.2 had been restored on September 26, 2017. According to Complainant, Pay Period 19 ended on September 30, 2017, so the September 26, 2017, date, which Complainant does not dispute, indicates timely compliance. However, Complainant contends that HRM breached the Agreement by violating Office of Personnel Management ("OPM") guidance on implementing settlement agreements failing to show "initiative" and respond to Complainant's update requests, thereby forcing Complainant to enlist the assistance of the Conflict Resolution and Analysis Administrator ("CRA").
The Commission does not enforce OPM guidance, and OPM is not referenced in the Agreement. To the extent that Complainant interpreted the Agreement as requiring HRM to provide updates, and implement Provisions 2.1 and 2.2 for an earlier pay period, or in accordance with OPM, such interpretation should have been reduced to writing as part of the settlement agreement, and in the absence of a writing cannot be enforced. See Jenkins-Nye v. Gen. Servs. Admin., EEOC Appeal No. 019851903 (Mar. 4, 1987). Therefore, Complainant cannot establish breach because of what she viewed as HRM's lack of initiative.
Provision 2.3 - Student Loan Repayment
In accordance with Provision 2.3, HRM's October 13, 2017 update letter, notified Complainant that her "student loan repayment request was submitted to the South Central Regional Office on September 29, 2017." On January 4, 2018, the Agency determined that it substantially complied with Provision 2.3, as the loan repayment request was "under final review by its Central Office in Washington, DC." Then, on February 22, 2018, the Agency's Bureau Personnel Director, Human Resource Management Division for its Washington, D.C. Central Office, denied the loan repayment request. In a March 2, 2018 email, Complainant contends that the Agency is still obligated to pay her student loans under Provision 2.3.
The plain language of Provision 2.3 makes clear that repayment of Complainant's student loans is not guaranteed. Payment is contingent on "if the repayment agreement is approved and all eligibility requirements as specified in PS3530.02 are met." The February 22, 2018 letter stated that Complainant did not meet the eligibility criteria because: (1) her position as a Respiratory Therapist did not have a minimum education requirement "as established by OPM Qualification Standards," and (2) a portion of her loan balance was for education unrelated to her position with the Agency. On appeal, Complainant offers evidence that the Respiratory Therapist position contains a minimum education requirement, as the job listing states, "[m]ust be a graduate from an accredited respiratory therapy school."
On appeal, Complainant insists that she provided HRM with all eligible loan documents, but acknowledges that a portion of her loans are for credits she earned for an unrelated subject before transferring to the health field. The February 22, 2018 letter indicates that Complainant failed to separate the relevant, "eligible," loan documents from those loans used to pay for her unrelated studies.2 The record is devoid of evidence from either party concerning whether the loan documents submitted met the requirements under PS3530.02, and were organized so that the reviewing official could identify the loan payments for credits considered eligible for the program.
If the February 22, 2018 denial is based on an error in the application of requirements by the Agency, it is in breach of the Agreement, and must act to cure the breach by resubmitting Complainant's loan repayment application clarifying the eligibility issues identified in the February 22, 2018 disapproval.
Provision 2.4 - Special Salary Rate Request
The Commission has found substantial compliance with the terms of a settlement agreement where agencies have committed, in good faith, a technical breach of a provision of the agreement which did not undermine its purpose or effect. The Commission has also found that the failure to satisfy a time-frame specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, especially when all required actions were subsequently completed. Mopsick v. Dep't of Health and Human Serv., EEOC Appeal No. 0120073654 (Aug. 17, 2009) citing Lazarte v. Dep't of the Interior, EEOC Appeal No. 01954274 (Apr. 25, 1996); Sortino v. United States Postal Serv., EEOC Request No. 05950721 (Nov. 21, 1996), citing Baron v. Dep't of the Treas., EEOC Request No. 05930277 (Sept. 30, 1993) (two-week delay in transfer of official letter of regret rather than letter of apology constituted substantial compliance); see also Hoyland v. Dep't of the Navy, EEOC Appeal No. 0120103271 (Dec. 2, 2010) (substantial compliance found with provision to pay $3,000 within 90 days when, after the complainant notified it that it missed the deadline, the agency issued the payment within a month).
Under Provision 2.4, the FMC Warden was to submit a request for a special rate table to the South Central Regional Office ("SCRO") and the Bureau's Central Office for the RT position by October 31, 2017. The October 13, 2017 update letter provided that the special salary rate request was "currently being completed and will be forwarded to the SCRO upon completion." The letter also advised Complainant that "the 2017 Review of Special Rate Tables request was submitted from Central Office to all institutions on August 15, 2017, with a due date of September 1, 2017. We are waiting to see if we can still submit any for 2017." The Agency completed its obligation under Provision 2.4 on November 13, 2017, explaining the nearly two week delay in compliance was due to the time needed to research comparable private sector RT positions in the Dallas Fort Worth area. The Agency determined that despite the delay, it was not in breach, as it substantially complied with the terms of Provision 2.4, and we agree.
As with Provisions 2.1 and 2.2, on appeal, Complainant's breach allegation for Provision 2.4 cites OPM procedures and questions why the required action was not completed significantly earlier than the deadline provided in the Agreement. Complainant again cites HRM's alleged lack of initiative for failing to meet the September 1, 2017 Agency-wide deadline, yet nothing in the plain language obligates HRM to have submitted the Special Rates Table before October 31, 2017. Complainant also disputes that the Agency had to obtain new information, causing further delay, contending that the requirement under Provision 2.4 "would have been especially rudimentary for HRM...since I made it known during ADR that I was requesting the Special Rate table that already exists for [her occupation.]" This pre-existing Salary table is not identified within the Agreement, and the Commission will not consider statements made during ADR, for reasons described above.
According to the plain language of the Agreement, we find the Agency substantially complied with Provision 2.4.
CONCLUSION
Accordingly, the Agency's finding of no breach is AFFIRMED, and since the record is not clear on the extent of the Agency's substantial compliance for Provision 2.3, we REMAND the matter to the Agency for further action in accordance with the following Order.
ORDER (C0610)
1. Student Loan Repayment Request - within 30 calendar days of the date of this Decision, if it has not done so already, appropriate Agency officials shall, with Complainant's cooperation, resubmit her loan repayment request, ensuring that proper documentation is provided that specifically addresses the eligibility concerns in the February 22, 2018 denial of repayment.
2. Compliance Report - 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.
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 (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the 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 (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
May 2, 2018
__________________
Date
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 According to the Agency, 42 semester credits were earned toward an Architecture major, which was unrelated to her position with the Agency.
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