0120151383
05-03-2016
Carmelo L.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Carmelo L.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120151383
Agency No. 12-61414-03018
DECISION
Complainant filed a timely appeal with this Commission when the Agency did not issue a final decision within 35 days of the date in which Complainant alleged breach of a September 17, 2014 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
During the period at issue, Complainant worked as a Police Officer at the Agency's Naval Weapons Station Yorktown (NWSY) in Yorktown, Virginia. Believing that the Agency submitted him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process.
On September 17, 2014, Complainant and the Agency entered into a settlement agreement to resolve the matter.2 The settlement agreement provided, in pertinent part, that the Agency would:
(3) Pay Complainant back pay, interest, benefits and overtime/bonuses commensurate with his peers in accordance with the Back Pay Act and applicable regulations for the period from August 11, 2012 through the date of reinstatement pursuant to paragraph 1, above. The Agency will submit the payment request to the Defense Finance and Accounting Service ("DFAS") within forty-five (45) days of the date Complainant provides all information necessary to calculate the amount of back pay, but disclaims any responsibility for the processing of the payment by DFAS thereafter. The Employee is solely responsible for the payment of any and all tax liability associated with this payment.3
By letter to the Agency dated October 15, 2014, an amended letter dated November 26, 2014, an email dated December 2, 2014, and an undated "Petition for Enforcement," Complainant alleged that the Agency breached provision 3. Specifically, Complainant alleged that he has not been paid "full back pay, interest, benefits and overtime/bonuses" from August 11, 2012 through the date of his reinstatement to Agency employment on October 6, 2014.
The Agency did not issue a final decision within 35 days of Complainant's breach allegation. However, the record contains a copy of the Agency Counsel's brief to the Commission in response to Complainant's appeal. Therein, the Agency Counsel stated that the Agency complied with provision 3 when, on December 2, 2014, it paid Complainant the sum of $36,909.94 for back pay, interest, benefits and overtime/bonuses, which included two within- grade step increases. The Agency Counsel stated that the Agency also paid Complainant uniform allowances.
Further, the Agency Counsel acknowledged a delay in the issuance of back pay. The Agency stated that the back pay calculations required coordination between the DFAS and the Agency, and the calculations were the subject of an audit after the original payments on November 15, 2014. The Agency Counsel stated that Complainant made demands for exclusion of medical benefits payments and inclusion of deferred compensation in calculations, which resulted in a more complex calculation. The Agency Counsel stated that, as a result, the calculations indicated that Complainant was overpaid. Specifically, the Agency Counsel stated "the Agency calculations establish that Appellant received pay increases (within grade step increases and annual adjustments) related to time in grade within the back pay period based on being in a duty status. See 5 USC 5335. The back pay calculations included benefits and overtime for Appellant that are complex due to the shifts and manning for police officers at NWSY during the back pay period varied based on security factors that also fluctuated. To address these fluctuations, the Agency assumed that Appellant would always receive overtime and night differential and weekend/holiday premium pay even where the historical data related to his peers may not have supported such pay. The back pay does not include bonuses because such data is not associated to his position."
In response to the Agency's brief, Complainant disputes the Agency Counsel's assertion that he has been overpaid the sum of $5,586.82 "as discussed above, the agency has underpaid Complainant and still owes him bonuses, overtime, night differential and the step increase to regular pay as discussed above."
The Agency Counsel stated that the Agency back pay calculations "made offsets for the outside earnings by Appellant during the back pay period covered by the Agreement." The Agency Counsel also stated that the back pay calculations included interest on back pay computation consistent with the Back Pay Act. Moreover, the Counsel stated "in auditing the back pay calculations by DFAS, it has been determined that Appellant has been over paid in the sum of $5,586.82."
The record contains a copy of a memorandum from the Labor and Employee Relations Specialist, dated April 3, 2015. Therein, the Specialist stated that on November 15, 2014, Complainant was paid $36,909.94 in back pay sum. Specifically, the Specialist stated that Complainant's back pay included the following:
(1) two step increases dated August 24, 2013 and August 23, 2014;
(2) uniform allowance ($852.00 and $400.00, paid to Complainant separately);
(3) 3 hours of night differential hours;
(4) "overtime is not an entitlement; employee did receive $383.47 for overtime once returned to duty on 11-29-14 ($212.94) and on 12-13-14 ($67.05); and
(5) Complainant's total income during the back pay period: $86,883.36. According to the Back Pay Act, any outside earnings must be deducted from the back pay. DFAS subtracted $49, 665.54: ($31,871.08 = 2014 earnings, $17,794.46 = 2013 earrings, and $555.00 lump sum annual leave plus 25% flat federal tax);
Further, the Specialist stated "per DFAS: in reviewing the settlement it has been discovered that a coding error was made which caused the employee to receive an erroneous refunds of Medicare, OASDI, FERS and TSP to the sum of: $5686.82 (Medicare $720.15, OASDI $3079.27, FERS $397.29, and TSP $1490.11)." The Specialist stated that DFAS determined that Complainant's total back pay is $31,223.12 under the terms of the settlement agreement. Moreover, the Specialist stated "based on my review of the DFAS back pay calculations and the attachments, the Department of Navy is in compliance with the settlement agreement."
The instant appeal followed.
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. 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 (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. Dep't 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. U.S. Postal Serv., 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).
After a careful review of the record, we find that the Agency did not breach provision 3 of the settlement agreement. Provision 3 provides an affirmative Agency obligation to assure that Complainant would be paid back pay, interest, benefits and overtime/bonuses from August 11, 2010 through the date of his reinstatement. The record reflects that the Agency paid Complainant in the amount of $36,909.94 which was $5,686.52 more than he was entitled to under the terms of the settlement agreement. The sum upon which the Agency arrived at its calculations is properly elucidated and supported by the record. We discern nothing in the present record that merits a decision to disturb the amount determined by the Agency.
The Agency's finding of no breach of provision 3 of the September 17, 2014 settlement agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), 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, 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 (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 3, 2016
__________________
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 The record reflects that the instant settlement agreement is dated September 16, 2014, but was signed off by the NWSY Executive Officer on September 17, 2014.
3 The record reflects that the Agency agreed to rescind Complainant's termination during his probationary period on August 10, 2012, reinstate Complainant to the position of Police Officer, and provide him proper training and education to ensure he is professionally prepared to resume his position; pay Complainant $30,000.00 in compensatory damages and attorney's fees. These provisions are not at issue in the instant case.
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