01970961
10-22-1998
Stella L. Barnett, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Stella L. Barnett, )
Appellant, )
)
) Appeal No. 01970961
v. ) Agency No. 950811
)
)
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
Appellant timely appealed the agency's final decision not to implement
the terms of the settlement agreement entered into by the parties.
See 29 C.F.R. ��1614.402, .504(b); EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency breached the settlement
agreement.
BACKGROUND
A review of the record reveals that appellant filed a formal EEO complaint
alleging that she had been subjected to unlawful discrimination.
Appellant and the agency settled the complaint on January 29, 1996.
The settlement agreement provided, in pertinent part, that:
The Agency agrees to pay [appellant] a lump sum cash settlement equivalent
to the difference of a GS-7, Step 6 and a GS-9, Step 4, computed from
July 9, 1992, to February 3, 1996.
The record further reveals that appellant and the agency amended the
settlement agreement on February 26, 1996, such that provision (1)
provided that:
The Agency agrees to pay [appellant] a lump sum cash settlement equivalent
to the difference of a GS-7, Step 6 and a GS-9, Step 4, computed from
July 9, 1992, to March 30, 1996.
By letter to the agency dated August 14, 1996, appellant alleged that the
agency had breached the settlement agreement. Appellant acknowledged that
she received an $8433.83 check from the agency purportedly for payment
of provision (1) of the settlement agreement, but asserted that she was
entitled to more money. Specifically, appellant asserted that because
the annual salary of a GS-9, step 4, was $33,725.00, and that of a GS-7,
step 6 was $29,239.00, a difference of $4,486.00, she was due, under
provision (1) of the agreement, $4,486.00 multiplied by the 3.75-year
time period identified in the agreement, for a total of $16,822.50.
In its final decision dated October 23, 1996, the agency declined to
implement the terms of the agreement, finding that it was in compliance.
The agency asserted that according to the language in the agreement,
appellant was to be paid a lump sum cash settlement equivalent to the
difference of the GS-7 previously paid and a GS-9, for the period from
July 9, 1992 to February 3, 1996. As a result of the foregoing, the
agency calculated the hourly difference in base pay and paid this amount
for all base hours paid for the above period, thus resulting in a gross
amount of $11,100.32. The agency then added an additional $36.27 for
overtime appellant worked during the period to make up for the difference
in overtime pay between the two pay grades, and $1,631.24 in interest,
thus raising the gross total to $12,767.83. After deducting federal
and state taxes and Medicare, appellant was due the remaining net amount
of $8,433.83.
On appeal, appellant contends that the agency erred in treating the
matter as a "backpay" settlement, as the plain language of the agreement
contains nothing about overtime or pro-rating the lump sum payment to
incorporate money appellant earned. By approaching it as a backpay issue,
appellant asserts that in calculating the amount of money due her, the
agency made adjustments in payment amounts to account for the succeeding
steps appellant would have achieved. Instead, appellant argues that the
face of the agreement provides for a lump sum payment of the difference
between annual salary of the two grades for the time period contemplated
by the settlement agreement.
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. In addition, 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 consistently held that settlement agreements are
contracts between the appellant and the agency, and 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 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).
As a threshold matter, we note that the agency improperly calculated
the time period from the original settlement agreement (July 9, 1992 to
February 3, 1996) rather than from the period identified in the February
26, 1996 amendment to the agreement, (July 9, 1992, to March 30, 1996).
Further, we find nothing in the agreement which suggests that the
settlement payment identified in provision (1) represents backpay for
that period. Contrary to the agency's assertion, the settlement does not
require payment of the difference of the GS-7 previously paid and a GS-9,
for the period identified. Rather, the plain language of the agreement
provides that appellant was to be paid the lump sum difference between
a GS-7, step 6 and a GS-9, step 4, for the period from July 9, 1992,
to March 30, 1996. Moreover, as this lump sum payment is not defined as
backpay, we find that the agency improperly subtracted federal and state
taxes and Medicare, and improperly added interest. We find that the
plain meaning of the settlement agreement contemplates the calculation
of payment as suggested by appellant, i.e., multiplication of the annual
difference in salaries for the two grades by the time period identified
in the agreement.
CONCLUSION
Accordingly, the agency's decision finding that it was in compliance with
the settlement agreement is hereby REVERSED. The matter is REMANDED to
the agency for further processing in accordance with this decision and
the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall calculate the difference in annual salary
between a GS-7, step 6 and a GS-9, step 4, for the period from July 9,
1992, to March 30, 1996.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall issue appellant a check for the amount calculated in
paragraph (1) of this Order, less the $8,433.83 already paid appellant,
plus interest for this amount for the period between when appellant
was issued the first check and her receipt of this subsequent check.
Copies of the agency's calculations and evidence of the issuance of the
appropriate check to appellant must be sent to the Compliance Officer
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Oct. 22, 1998
______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations