0120142815
07-07-2016
Faustino M.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Faustino M.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120142815
Agency No. ARAPG11JAN00128
DECISION
Complainant timely appealed to this Commission from the Agency's June 27, 2014 finding that it was in compliance with the terms of the 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
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Operations Specialist (GS-12) at the Agency's Redstone Test Center ("RTC") at the Redstone Arsenal in Huntsville, Alabama.
On December 13, 2012, Complainant and the Agency entered into a settlement agreement ("the Agreement") to resolve the matter of damages and compensation for Complainant's allegations of discrimination (race, reprisal for prior EEO activity), which had reached the EEO hearing phase (EEOC Hearing No. 531201200288X). The instant complaint concerns Section 6(c) of the Agreement, which states:
The Agency agrees to reassign Complainant to the position of Operations Specialist, GS-0301-12 (including safe base pay) at Redstone Arsenal, AL, and pay the Permanent Change of Station ("PCS") expenses associated with that move, which includes: transportation and per diem for the employee, the moving of household goods, certain expenses that are charged as a result of termination of a lease, and storage of household goods while new living quartets are located. This move should take place no later than 60 days after the effective date of the final settlement agreement.
By letter to the Agency dated May 19, 2014, Complainant alleged that the Agency was in breach of Section 6(c) of the Agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency:
1. Issued multiple erroneous PCS Orders and issued new PCS Orders without titling the changes as amendments;
2. Failed to completely and timely pay all entitlements as provided in Section 6(c) resulting in delayed payment to his Government Travel Credit Card ("GTCC"), and a monthly "Government Indebtedness" allotment to be deducted from his Military Retirement Pay, beginning May 1, 2014; and
3. Caused him to be scrutinized in his role as Operations Specialist and assigned overwhelming amounts of work compared to co-workers at a higher grade.2
In order to implement Term 6(c), the Agency issued Complainant "PCS Orders," which described what moving expenses were approved for reimbursement, including, per the Agreement a house hunting trip ("HHT"), costs associated with moving household goods ("HHG") and Temporary Quarters Subsistence Expenses ("TQSE"). Complainant was issued a Citibank credit card to charge his expenses under the Government Travel Charge Card Program ("GTCCP"). A per dium travel allowance based on his PCS Orders would be applied directly to Complainant's GTCC, as well as reimbursements for approved expenses. To get reimbursed for approved expenses, Complainant submitted proof of payment and vouchers to the Defense Finance and Accounting Service ("DFAS"). DFAS would either approve full or partial reimbursement or deny Complainant's reimbursement vouchers based on his PCS Orders and the Joint Travel Regulations governing DFAS.
Complainant's move from Aberdeen Proving Ground, Maryland ("APG") to Huntsville, Alabama ("RTC") should have been completed by February 11, 2013, based on the 60 day estimate in the Agreement. Regardless, Complainant was required to report for duty at RTC on February 10, 2013. On January 3, 2013 Complainant initiated the PCS process by attending a PCS transportation briefing. On January 7, 2013, he submitted the completed PCS form to the Agency, and on January 14, 2013, the Agency issued Complainant's first PCS Orders. Complainant scheduled his house hunting trip ("HHT") from January 18 through 27, 2013; he would also meet with his new supervisor during the trip.
The Agency made repeated administrative errors while processing Complainant's PCS Orders, causing DFAS to reject his travel vouchers for reimbursement. By the time Complainant received his first valid PCS Orders on February 20, 2013, he had already relocated to RTC and was trying to obtain correct TQSE authorization as he sought a permanent residence. Complainant alleges that that the delay in issuing proper PCS Orders caused him unanticipated expenses, including an additional trip to APG, an additional two months' rent at his APG apartment because he was unable to move his HHG, and late fees on his GTCC, because he could not afford to pay the balance without reimbursements. Complainant alleges that when he did receive the delayed reimbursement, the Agency improperly denied multiple expenses approved under the Agreement. The resulting credit card debt led to the allotment on his retirement account.
The Agency responded to Complainant's concerns by requesting an independent audit from DFAS. On December 17, 2013 DFAS appointed an investigating officer, who reviewed the record, including Complainant's previously submitted receipts, and interviewed relevant Agency officials. Although Complainant alleges that the investigation was incomplete and he was denied an opportunity to provide additional evidence, the "Investigative Methodology" accompanying the report indicates that the investigating officer spoke with Complainant on January 6, 2014 and January 30, 2014. It also states that on March 13, 2014, the investigating officer received a "detailed statement" from Complainant that "laid out a very good sequence of events including the various amendments to his orders." On May 5, 2014, DFAS issued its report, finding Complainant's PCS Orders were poorly handled (suggesting an Agency review), and that the Agency overpaid Complainant by approximately $1,058.
Based on the DFAS Report, the Agency determined that it did not breach Section 6(c) pursuant to 29 C.F.R. � 1614.504.
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).
Claim 1: Erroneous PCS Orders
As a preliminary matter, changes to PCS Orders do not constitute amendments to the Agreement. Therefore, the Agency did not breach the Agreement when it did not identify Complainant's changed PCS Orders as amendments.
A plain language reading of Section 6(c) presumes that "pay the PCS expenses" entails proper processing of PCS Orders. The record shows that Complainant took the necessary actions to obtain his PCS Orders in time to complete his HHT, ship his HHG, and submit DFAS Vouchers for reimbursement by February 11, 2013. However, within two days of issuing the PCS Orders, the Agency sent Complainant a revised version with a corrected date. The next day (also the day before Complainant's HHT) the Agency informed Complainant that the revised PCS Orders were also invalid because they were missing an issue date and Travel Authorization Number, which his supervisor should have provided. Complainant was on his HHT from January 18 through 27. He submitted his DFAS Travel Voucher for his HHT expenses on January 29, 2013. On January 30, 2013, the Agency emailed Complainant again that the PCS Orders had not been corrected and Complainant emailed multiple parties to determine the missing information and submitted it that day. Also on January 30, 2013, Complainant attempted to arrange his HHG shipment but was denied due to invalid PCS Orders. On February 19, 2013 DFAS returned Complainant's HHT Vouchers due to errors on his PCS Orders (the same errors he corrected on January 30, 2013).
The Agency does not dispute that it caused the delayed PCS Orders as a result of its own administrative errors. However, it sought a DFAS independent audit as a result of Complainant's concerns and copious email records demonstrate the Agency's responsiveness and prompt efforts to remedy the errors. We note that the compressed time frame of Complainant's PCS provided little room for error by either party. Hence, the Agency's administrative errors on Complainant's PCS Orders, while unfortunate, and likely the cause of unforeseen expenses and a lot of stress for Complainant, do not rise to the level of breach.
Claim 2: Failure to Pay Entitlements
Instances where expenses covered by the Agreement were not fully reimbursed do not constitute breach so long as they are consistent with properly issued PCS Orders and DFAS policy. Specifically, Section 6(c) identifies "transportation and per diem for the employee, the moving of household goods, certain expenses that are charged as a result of termination of a lease, and storage of household goods while new living quarters are located" as specific "PCS expenses" that the Agency is required to pay. On appeal, Complainant argues that PCS expenses identified in Section 6(c) must be fully reimbursed regardless of Agency policy. The Agency contends that it is in compliance because it included the specified expenses as "approved expenses" eligible for reimbursement in Complainant's PCS Orders.
A plain meaning review of the Agreement supports the Agency's position. The list is described as "PCS expenses" rather than simply "expenses." "PCS" refers to an Agency-specific process that may include approval for reimbursement for the items listed in Section 6(c), which, as with all of the Agency's financial transactions, are subject to DFAS regulations. For instance complainant did not receive more than $92.25 for a hotel room that exceeded that amount because under the regulations, the maximum TQSE allowance for a hotel is $92.25. Complainant's argument on appeal, that "the settlement agreement trumps the Agency's travel regulations" is not supported within the language of the Agreement. Complainant failed to prove the Agency breached the Agreement in the instances it did not fully reimburse him for the specifically listed expenses in Section 6(c). We agree with the Agency's finding that based May 5, 2014 DFAS Report, Complainant owes the Agency $1,057.55.
The "Government Indebtedness" allotment cannot constitute a breach of the Agreement because it arises from a separate agreement between Complainant and another party, Citibank, pursuant to the GTCCP. In instances of nonpayment, Citibank, per the GTCCP, has the right to initiate an allotment though DFAS to collect debt through the employee cardholder's Military Retirement Pay. The record reveals that Complainant signed a statement of understanding with Citibank, and took an online course acknowledging that he was personally responsible for any debt accrued on the GTCC. If Complainant has not already done so, we suggest that he contact Citibank regarding his concerns about using his retirement account as the source of repayment.
Claim 3: Disparate Treatment
Complainant's claim regarding his treatment since he started working as an Operations Specialist at the Redstone Test Center ("RTC") concerns subsequent acts of alleged discrimination. If Complainant wishes to pursue the alleged harassment as a separate complaint of discrimination, he must contact an EEO counselor.
CONCLUSION
Accordingly, the Agency's finding of no breach 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), 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
July 7, 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 While not addressed in the Agency's final decision, we have also included Complainant's allegation that the Agency breached Section 6(c) with regard to the Operations Specialist assignment, because he raised the matter in both his formal complaint and on appeal.
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