0120091237
07-16-2009
Rosene M. Monfore, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Rosene M. Monfore,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091237
Agency No. 200P07772007103814
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated December 9, 2008, finding that it was
in compliance with the terms of the June 24, 2008 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.
The settlement agreement provided, in pertinent part, that:
(1) The complainant shall be compensated at the pay rate
that would have been in effect during the period of February 1, 2005
through July 12, 2007. Any periods of Leave Without Pay (LWOP) used
for illnesses, medical appointments, and surgery to include recovery
time is excluded. Non-VA income earned by the complainant will reduce
compensation due claimant. Within 60 days of providing VA absence
information, VA will complete payment of salary. VA will not dispute
information submitted;
(2) The Complainant shall receive service credit for LWOP
specified at paragraph '1' Part II (A) towards her Service Computation
Date (SCD) to reflect that there was no break in service. The LWOP period
not to include the excluded LWOP will be changed to Authorized Absence AA.
(As if the LWOP absence never existed). This will restore all Annual
and Sick Leave that would have been accrued during that period;
(3) The Complainant shall receive all Within-Grade increases
due that would have occurred during the period specified in paragraph
'1' Part II (A).
III(B)12 Any tax liability arising from any payment to Complainant
is the sole responsibility of Complainant. The agency makes no
representations as to the taxability of any payment or as to the tax
treatment such payment will receive from any tax authority, including
but without limitation, the Internal Revenue Service and California
Franchise Tax Board.
By a series of electronic mail messages to the agency beginning August 26,
2008, complainant alleged that the agency was in breach of the settlement
agreement, and requested that the agency specifically implement its terms.
Specifically, complainant alleged that the agency failed to provide her
with documentation regarding leave restoration calculations, Notice of
Personnel Actions (SF-50) regarding leave without pay. In addition,
complainant alleges that the agency failed to provide her with amended
earnings and leave statements, and she further alleges that an annual
leave spreadsheet provided by the agency reflects a 240 hour carry-over of
annual leave which is not in compliance with the settlement agreement.
Complainant further alleges that she was not advised regarding any
tax liability she would incur as a result of the terms of the June 24,
2008 settlement agreement. Finally, complainant contends that she was
not given the opportunity to dispute the LWOP calculations prior to the
execution of the agreement.
In its December 9, 2008 FAD, the agency concluded that complainant failed
to demonstrate that the agency breached the agreement as alleged.
Specifically, the agency indicates that all LWOP was restored to
on-duty status, annual or sick leave. Moreover, the agency states that
complainant's service computation date which establishes eligibility
for retirement has not been changed. The agency also indicates that
complainant received a within-grade increase which was documented in
an SF-50 and complainant received an increase to the GS-13 grade level
effective July 23, 2006. The agency further contends that complainant'
240 carry-over of annual leave does not violate any specific provision of
the agreement. Finally, the agency states that complainant was provided
under the Older Worker's Benefits Protection Act (OWBPA), a 21 day grace
period to review the agreement, consult with an attorney, as well as
a 7 day opportunity to revoke the agreement once it had been executed.
In sum, the agency determines that it has complied with the provisions
of the agreement.
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. Department of Defense,
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. Department 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. United States Postal
Service, 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 the instant case, we find that complainant has failed to demonstrate
that the agency breached the agreement as alleged. Specifically, the
Commission finds that other than complainant's bare assertions, she fails
to offer persuasive evidence to contradict the agency's determination.
We note specifically that in her appeal statement, complainant indicates
that the terms of the agreement were "carried out after the 60 day
deadline," or "not met and that harm did occur." Complainant has failed
to demonstrate how the agency failed to meet specific provisions of the
agreement, nor has she shown how she was harmed by the agency's alleged
breach. The record indicates that complainant had 21 days to review the
settlement prior to signing the agreement and another 7 days to revoke
the settlement agreement all together. A review of the record in this
matter discloses that complainant's appeal mainly addresses the agency's
calculations regarding her leave record and the tax liability incurred
as a result of the agreement between the parties. The Commission finds
that if complainant had concerns about the LWOP calculations agreed to
in the settlement agreement, she should have negotiated such additional
terms into the settlement. Moreover, the Commission finds that the
settlement agreement addressed complainant's potential tax liability as
the agency indicates in its final decision. We find that complainant
has failed to establish the agency's breach in this matter. .
Accordingly, the agency's determination is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 16, 2009
__________________
Date
2
0120091237
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013