01a60982
05-05-2006
Tracy Givens, Jack S. Woodard, Thomas L. Harris, Gregory Graves, Jimmie Wells, Elby M. Washington, John Uqdah, Roger Mitchell, and Walter Gilmore, Complainants, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Tracy Givens, Jack S. Woodard, Thomas L. Harris, Gregory Graves, Jimmie
Wells, Elby M. Washington, John Uqdah, Roger Mitchell, and Walter Gilmore
v. Department of Veterans Affairs
01A60974, 01A60975, 01A60976, 01A60977, 01A60978, 01A60979, 01A60980,
01A60981, and 01A60982
May 5, 2006
.
Tracy Givens, Jack S. Woodard, Thomas L. Harris, Gregory Graves, Jimmie
Wells, Elby M. Washington, John Uqdah, Roger Mitchell, and Walter
Gilmore,
Complainants,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal Nos. 01A60974, 01A60975, 01A60976, 01A60977, 01A60978, 01A60979,
01A60980 01A60981 and 01A60982.
Agency Nos. 200406882003103669, 200406882003103705, 200406882003103703,
200406882003103702, 200406882003103706, 200406882003103707,
200406882003103708, 200406882003103733, and 200406882003103701.
DECISION
Complainants filed timely appeals with this Commission from final agency
decisions (FADs) dated October 31, 2005, finding that the agency was
in compliance with the terms of the August 4, 2005 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 relevant parts of each settlement agreement provided, in pertinent
part, that the agency shall:
With regard to Tracy Givens (Agency No. 200406882003103669):
(2a) Non-competitively promote the complainant from Rehabilitation
Technician, GS-181-8, step 9, to Addiction Therapist, GS-101-11, step
1, effective March 1, 2003, with the appropriate backpay, benefits and
interest retroactive to said date as provided by the Back Pay Act;
(2b) Pay $25,000.00 (USD) in attorney fees and costs made payable to
Kator, Parks & Weiser PLLC....
(2c) Complete th provisions outlined in sections 2 (a) and 2 (b) above
within 30 days of the date of the last signature below required to
effectuate this agreement.
With regard to Jack S. Woodward (Agency No. 200406882003103705):
(2a) Non-competitively promote the complainant from Rehabilitation
Technician, GS-181-8, step 9, to Addiction Therapist, GS-101-9, step 8,
effective March 1, 2003, with the appropriate backpay, benefits and
interest retroactive to said date as provided by the Back Pay Act;
(2b) Non-competitively promote the complainant from Addiction Therapist,
GS-101-9, step 8 to GS-101-11, after one-year of actual service at the
GS-9 level; and
(2c) Complete the item specifically delineated in item 2(a) within 30
days of the date of the last signature below. The Agency shall complete
item 2(b) above within no more than one year and thirty days of the date
of the last signature below.
With regard to Thomas L. Harris (Agency No. 200406882003103703):
(2a) Non-competitively promote the complainant from Rehabilitation
Technician, GS-181-8, step 8, to Addiction Therapist, GS-101-9, step 7,
effective March 1, 2003, with the appropriate backpay, benefits and
interest retroactive to said date as provided by the Back Pay Act;
(2b) Non-competitively promote the complainant from Addiction Therapist,
GS-101-9 to GS-101-11, after one-year of actual service at the GS-9
level; and
(2c) Complete the item specifically delineated in item 2(a) within 30
days of the date of the last signature below. The Agency shall complete
item 2(b) above within no more than one year and thirty days of the date
of the last signature below.
With regard to Gregory Graves (Agency No. 200406882003103702):
(2a) Non-competitively promote the complainant from Rehabilitation
Technician, GS-181-7, step 4, to Addiction Therapist, GS-101-9, step 1,
effective August 10, 2003, with the appropriate backpay, benefits and
interest retroactive to said date as provided by the Back Pay Act;
(2b) Non-competitively promote the complainant from Addiction Therapist,
GS-101-9 to GS-101-11, after one-year of actual service at the GS-9
level; and
(2c) Pay complainant two thousand three hundred sixty-one dollars and
sixty cents (USD) ($2,361.60) in compensatory damages by check made
payable to Gregory Graves, and
(2d) Complete the item specifically delineated in item 2 (a) and (c)
above within 30 days of the date of the last signature below. The Agency
shall complete item 2(b) above within no more than one year and thirty
days of the date of the last signature below.
With regard to Jimmie Wells (Agency No. 200406882003103706):
(2a) Non-competitively promote the complainant from Rehabilitation
Technician, GS-181-8, step 8, to Addiction Therapist, GS-101-9, step 7,
effective March 1, 2003, with the appropriate backpay, benefits and
interest retroactive to said date as provided by the Back Pay Act;
(2b) Non-competitively promote the complainant from Addiction Therapist,
GS-101-9 to GS-101-11, after one-year of actual service at the GS-9
level; and
(2c) Complete the item specifically delineated in item 2(a) within 30
days of the date of the last signature below. The Agency shall complete
item 2(b) above within no more than one year and thirty days of the date
of the last signature below.
With regard to Elby M. Washington (Agency No. 200406882003103707):
(2a) Non-competitively promote the complainant from Rehabilitation
Technician, GS-181-8, step 2, to Addiction Therapist, GS-101-9, step 1,
effective July 13, 2003, with the appropriate backpay, benefits and
interest retroactive to said date as provided by the Back Pay Act;
(2b) Non-competitively promote the complainant from Addiction Therapist,
GS-101-9, step 8 to GS-101-11, after one-year of actual service at the
GS-9 level; and
(2c) Pay complainant one thousand one hundred thirty-one dollars and
twenty cents (USD) ($1,131.20) in compensatory damages by check made
payable to Elby Washington; and
(2d) Complete the item specifically delineated in item 2 (a) and (c)
above within 30 days of the date of the last signature below. The Agency
shall complete item 2(b) above within no more than one year and thirty
days of the date of the last signature below.
With regard to John Uqdah (Agency No. 200406882003103708):
(2a) Non-competitively promote the complainant from Rehabilitation
Technician, GS-181-8, step 7, to Addiction Therapist, GS-101-9, step 8,
effective March 1, 2003, with the appropriate backpay, benefits and
interest retroactive to said date as provided by the Back Pay Act;
(2b) Pay $3,000.00 in compensatory damages in a check made payable to
John Uqdah; and
(2c) Complete the item specifically delineated in item 2(a) and 2(b)
above within 30 days of the date of the last signature below.
With regard to Roger Mitchell (Agency No. 200406882003103733):
(2a) Non-competitively promote the complainant from Rehabilitation
Technician, GS-181-7, step 2, to Addiction Therapist, GS-101-9, step 1,
effective April 4, 2003, with the appropriate backpay, benefits and
interest retroactive to said date as provided by the Back Pay Act;
(2b) Non-competitively promote the complainant from Addiction Therapist,
GS-101-9, step 8 to GS-101-11, after one-year of actual service at the
GS-9 level; and
(2c) Pay complainant seven thousand eight hundred nine dollars and
sixty cents (USD) ($7,809.60) in compensatory damages by check made
payable to Roger Mitchell; and,
(2d) Complete the item specifically delineated in item 2(a) and (c)
above within 30 days of the date of the last signature below. The Agency
shall complete item 2(b) above within no more than one year and thirty
days of the date of the last signature below.
With regard to Walter Gilmore (Agency No. 200406882003103701):
(2a) Non-competitively promote the complainant from Rehabilitation
Technician, GS-181-8, step 9, to Addiction Therapist, GS-101-9, step
9, effective July 1, 2003, with the appropriate backpay, benefits and
interest retroactive to said date as provided by the Back Pay Act;
(2b) To complete such within 30 days of the date of the last signature
below required to effectuate this agreement.
By letter to the agency dated September 14, 2005, complainants through
their counsel alleged that the agency was in breach of the settlement
agreements, and they requested that the agency specifically implement
their terms. Specifically, complainants alleged that as of the date
of the letter, forty-one days had passed since the execution of the
agreements and the agency had accomplished none of its obligations.
Complainants also called attention to the fact that the agency had
failed to process the agreed upon grade change of the complainants who
had retired and whose annuity payments would be greatly affected by the
changes.
In its October 31, 2005 FADs, the agency concluded that each complainant
had been retroactively promoted from Lead Rehabilitation Technician to
Addiction Therapist pursuant to the individual settlement agreements.
Moreover, the FADs affirmed that the complainants who were owed
compensatory damages and/or attorneys fees were duly compensated as per
the agreements by September 20 or September 22, 2005.
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 Defense, 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.
See 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
Service, 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).
In the instant case, we find that the agency is in breach of the
settlement agreements. The agency has, albeit in an untimely manner,
retroactively promoted the complainants as agreed and paid the
complainants who were due compensatory damages and attorney fees.
However, the agency has failed to prove that it complied with its
obligation to pay complainants the appropriate interest and benefits
as per section 2a of each of the settlement agreements. As counsel to
complainants indicates, the earnings and leave statements fail to provide
any itemization for interest and benefits. We are persuaded by counsel's
base pay analysis that the earnings and leave statements include only the
base pay differential and not an amount for interest. Moreover, we are
troubled by counsel's continued claim that complainants Gilmore (Agency
No. 200406882003103701) and Uqdah (Agency No. 200406882003103708) have
retired, but, as of the date of the statement in support of the breach
allegation, have not received adjusted annuity payments. The agency did
not address this issue in its FADs. Without further proof, we interpret
this silence as an indication of non-compliance.
Accordingly, the Commission REVERSES the agency's findings of no
breach and REMANDS these matters so that the agency undertake specific
performance of provisions 2a in accordance with the Order below, and
adjust the annuity payments of complainant Gilmore and Uqdah.
ORDER
Within thirty (30) days of the date of this decision becomes final,
the agency shall:
Provide complainants with the interest on the backpay and any of the
attendant benefits due pursuant to provision 2a of each settlement
agreement; and
Expeditiously adjust the annuity payments of complainants Gilmore and
Uqdah to reflect the interest and benefits owed to them pursuant to
their settlement agreements, and
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
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 (K0501)
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 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 (M0701)
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 19848,
Washington, D.C. 20036. 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
(R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 5, 2006
__________________
Date