closed0120132543
11-14-2013
Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Commissary Agency), Agency.
,
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120132543
Agency No. DECA-00084-2011
DECISION
Complainant filed an appeal with this Commission alleging that the Agency was not in compliance with the terms of the February 6, 2013 settlement agreement into which the parties entered.
BACKGROUND
On February 6, 2013, Complainant and the Agency entered into a settlement agreement to resolve a matter that had been pursued in the EEO complaint process. The settlement agreement provided, in pertinent part, that:
3(b) To place Complainant in the position of Assistant Grocery Manager GS-09-10 at Langley AFB Commissary, effective February 2, 2011, with promotion to GS-10, effective February 2, 2012
3(c) To pay Complainant back pay corresponding to paragraph 3b, effective February 2, 2011.
The record reflects that Complainant's attorney sent a letter to the Agency dated April 15, 2013, that it was not in compliance with the settlement agreement.
After not receiving a decision from the Agency on this matter within 35 days of filing her letter of noncompliance, Complainant filed an appeal with the Commission's Office of Federal Operations. Complainant's attorney further asserts "[s]ubsequent to Complainant's April 15, 2013 notification of noncompliance, the Agency promoted Complainant to the Assistant Grocery Manager position and paid Complainant's attorney's fees as required by the agreement. Complainant also received a monetary deposit from the Agency, but no itemization or explanation was ever provided in order to decipher whether the monetary deposit constituted Complainant's full back pay as required by the settlement agreement."
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 (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).
In the instant case, we are unable to ascertain from the record whether the Agency is in compliance with provision 3(c) of the settlement agreement. The record contains an email from Complainant's attorney to Agency Counsel dated May 17, 2013. Therein, Complainant's attorney states "[Complainant] informed me that she received a deposit in her account but she cannot tell if it is her full back pay or not. Would it be possible to send us (or have DFAS send us) an accounting of how they determined her back pay so that she can verify that she has been paid the whole amount?" In response, Agency Counsel replied in an email dated May 20, 2013, "I will pass on your request to DFAS. They have provided me such an accounting in the past." The record contains a copy of a spreadsheet which appears to be related to Complainant's back pay. However, the record does not contain an explanation with respect to this spreadsheet. In addition, it is unclear from the record what amount the Agency actually paid Complainant.
Accordingly, we REMAND this matter to the Agency for further processing in accordance with the Order below.
ORDER
The Agency is ORDERED to take the following action:
1. The Agency shall supplement the record with evidence clearly showing whether it has complied with provision 3(c) of the February 6, 2013 settlement agreement. The record should be supplemented with evidence reflecting how much back pay Complainant has received and documentation clearly reflecting how the Agency calculated this amount.
2. Within thirty (30) calendar days from the date this decision becomes final, the Agency shall issue a new decision concerning whether it is in breach of provision 3(c) of the settlement agreement.
A copy of the Agency's new decision must be sent to the Compliance Officer referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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 (R0610)
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 (Z0610)
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
November 14, 2013
Date
2
0120132543
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120132543