Elsa R.1 Complainants,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionFeb 22, 20190120180294 (E.E.O.C. Feb. 22, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sade M., and Elsa R.1 Complainants, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. Appeal Nos. 0120180292 0120180294 Agency Nos. AREBELVOIR15MAY01898 AREBELVOIR15MAY01899 DECISION Complainant 1 and Complainant 2 filed timely appeals with the Equal Employment Opportunity Commission (EEOC or Commission) from a consolidated final agency decision (FAD) by the Agency dated September 21, 2017, finding that it was in compliance with the terms of the settlement agreements 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. We consolidate these appeals for joint processing pursuant to 29 C.F.R. § 1614.606. ISSUE PRESENTED The issue presented is whether the Agency is in compliance with the terms of the March 28, 2017, settlement agreements. 1 This case has been randomly assigned a pseudonym which will replace Complainants’ name when the decision is published to non-parties and the Commission’s website. 0120180292 0120180294 2 BACKGROUND At the time of events giving rise to this complaint, Complainant 1 worked as a Health System Specialist and Complainant 2 worked as a Telehealth Clinical Analyst. Complainants, who are sisters, both worked at the Agency’s Regional Health Command Atlantic in Arlington, Virginia. Believing that the Agency subjected them to unlawful discrimination, Complainants initiated the EEO complaint process, filed EEO complaints, and each requested a hearing before an EEOC Administrative Judge. During the hearing process, Complainant 1 and Complainant 2 each entered into a separate settlement agreement on March 28, 2017, with the Agency to resolve their complaints. Both settlement agreements provided, in pertinent part, that the Agency agreed to the following: 4.(a) Allow Complainants to telework five days per week; (b) Pay Complainant 1 $95,000 and pay Complainant 2 $99,000; (c) Restore annual leave in the amount of 286.6 hours of annual leave and 172 hours of sick leave for each Complainant; (d) Modify Complainants’ 2015 and 2016 year-end performance appraisals to reflect ratings of “Exceeds 5+”; (e) Pay attorney’s fees in amounts of $25,005 to Complainant 1 and $25,001 to Complainant 2. 15. [T]o complete all personnel actions within 30 calendar days of this agreement. . . . [and] to submit any further documentation required to make any payments required under this agreement to the Defense Finance and Accounting Service (DFAS) within 30 calendar days of this agreement. The Agency agrees to notify Complainant when it submits its documentation for payment to DFAS. . . . If DFAS does not process payment within 180 calendar days of the effective date of this agreement, this Agreement will be considered breached. By letter to the Agency dated May 26, 2017, Complainants, through their attorney, alleged that the Agency was in non-compliance with all the above provisions in each settlement agreement, and requested that the Agency specifically implement the terms in each agreement. On June 27, 2017, the Agency issued a FAD, agreeing with Complainants that it had not complied with all the terms of both settlement agreements. The Agency therefore ordered itself to fully implement the terms of the agreements and instructed that a report of compliance must be submitted to each 0120180292 0120180294 3 Complainant within 30 days from the date of the issuance of the FAD. 2 On August 3, 2017, Complainants sent the Agency a second letter of non-compliance. Therein, Complainants asserted that the Agency had not submitted its compliance report or complied with provisions 4(b)-(e) of the agreements. Subsequently, on September 21, 2017, the Agency issued its second FAD, finding that it was now in substantial compliance with the settlement agreements. Therein, the Agency noted that payments were made to each Complainant in the amounts of $95,000 and $99,000, respectively. The Agency also noted that its personnel records showed that the ratings for both Complainants, for annual performance appraisals 2015 and 2016, reflected ratings at the level 5 Exceptional level. The Agency additionally responded that Complainants’ attorney was paid the amounts of $25,005 and $25,001, respectively. With regard to its compliance with provision 4(c), the Agency noted that it submitted documentation to the DFAS to restore the annual leave and sick leave to Complainants’ accounts. But it could not determine when the action could be completed because it has no control over the DFAS. The Agency acknowledged, however, that it did not submit evidence proving that it submitted the required documentation to the DFAS to restore the agreed upon leave. The Agency nevertheless found that Complainants failed to establish any harm from the delay in restoring the leave. In sum, the Agency found that it was in substantial compliance with the settlement agreements. CONTENTIONS ON APPEAL On appeal, Complainants, through their attorney, maintain that the Agency is not in compliance with provision 4(c) of the settlement agreements. Complainants maintain that they have not received “clear” evidence from the Agency that the DFAS is properly processing their leave restoration. Complainants state that they have retired and have not received lump sum payments reflecting the proper amounts of the restored leave. Complainants specifically state that they have not received evidence that the DFAS is actually processing the correct amount of restored leave for calculating their annuities. In response to Complainants’ appeals, the Agency submitted a 3-page document for Complainant 1 that appears to be DFAS paperwork dated October 5, 2017 that shows a correction to Complainant 1’s employee data and a lump sum payment for leave restored. The amount of leave restored does not appear to match exactly what was agreed to in the settlement agreement. There is not a corresponding document in the record for Complainant 2. 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 2 The Agency also ordered attorney’s fees incurred with respect to Complainants’ allegation of non-compliance dated May 26, 2017. 0120180292 0120180294 4 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 note that provision 4(c) requires the Agency to restore annual leave in the amount of 286.6 hours and sick leave in the amount of 172 hours for each Complainant. In its September 21, 2017 FAD, the Agency stated that it submitted documentation to the DFAS to restore the annual leave and sick leave to Complainants’ accounts. But it could not determine when the action could be completed because it has no control over the DFAS. Upon review, we note that the Agency has not provided any documentation in the record demonstrating that it submitted the proper paperwork to the DFAS necessary to restore Complainants’ leave. In its September 21, 2017 FAD, the Agency acknowledged that it did not submit evidence proving that it submitted the required documentation to the DFAS to restore the agreed upon leave. The October 5, 2017 DFAS paperwork for Complainant 1 does not demonstrate complete compliance with provision 4(c) and does not suffice to demonstrate compliance with provision 15, namely that the Agency “notify Complainant when it submits its documentation for payment to DFAS.” Further there is no documentation at all for Complainant 2 in this regard. There is no dispute that the 180-day time limitation agreed to in provision 15 has elapsed, and we find that the Agency has been given more than a reasonable time to show that it has complied with the provision. Therefore, we find that the Agency has breached provision 4(c) of each settlement agreement. See Ward v. Dep’t of the Army, EEOC Appeal No. 01A45705 (Dec. 29, 2004) (finding a settlement breach when the agency did not provide any documentation in the record demonstrating that it completed the paperwork necessary for DFAS to restore complainant’s leave). Where this Commission finds that a settlement agreement has been breached, as here, the only two remedies available are specific performance of the terms of the agreement or reinstatement of the underlying EEO complaint at the point processing ceased. Complainants may also recover any attorney’s fees incurred as a result of the breach. Here, Complainants seek specific performance of the agreements and attorney’s fees for each instant breach. We therefore instruct the Agency to comply with the Order as set forth below. 0120180292 0120180294 5 CONCLUSION Accordingly, the Commission MODIFIES the Agency’s determination that there was no settlement breach and REMANDS this matter to the Agency for further action in accordance with this decision and the ORDER below. ORDER The Agency is ordered to take the following remedial action: Within thirty (30) calendar days of the date this decision is issued, the Agency shall provide documentation to Complainants showing that the proper paperwork has been submitted to the DFAS for the restoration of Complainants’ leave in accordance with provision 4(c) of each settlement agreement. ATTORNEY’S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 16l4.501(e)(1)(iii)), 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 0120180292 0120180294 6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the 0120180292 0120180294 7 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 February 22, 2019 Date Copy with citationCopy as parenthetical citation