Gracie E. Davis, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Threat Reduction Agency) Agency.

Equal Employment Opportunity CommissionSep 10, 2002
01A13563_r (E.E.O.C. Sep. 10, 2002)

01A13563_r

09-10-2002

Gracie E. Davis, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Threat Reduction Agency) Agency.


Gracie E. Davis v. Department of Defense

01A13563

September 10, 2002

.

Gracie E. Davis,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

(Defense Threat Reduction Agency)

Agency.

Appeal No. 01A13563

Agency Nos. COL-98-DD-0602-E, et al.

Hearing No. 100-99-7351X

DECISION

Complainant timely appealed the agency's decision that denied her claim

that the settlement agreement entered into between the parties had

been breached.

In June 2000, the parties entered into a settlement agreement with regard

to several complaints that had been filed by complainant. The settlement

agreement provided, in pertinent part, that complainant agrees as follows:

[2] a. Work, in good faith, with Agency supervisors to finalize her

Position Description, cooperate with the Agency audit of her leave and

payroll records, and cooperate with the Agency processing of her OWCP and

disability retirement claims. The Complainant will accept the Agency's

audit of her leave and payroll records as final and binding.

Write her nomination for the Women in Science and Engineering (WISE)

Award and submit the award to the appropriate personnel for Agency

consideration. Complainant understands her submission of the WISE award

for Agency consideration does not constitute automatic Agency consent

to forward the WISE award for consideration.

The settlement agreement provided, in pertinent part, that the agency

agrees as follows:

[3] a. Pay Complainant, within 45 days of the date of this agreement,

a lump sum total of $45,000 for attorney's fees and costs. This lump

sum is not intended as earned income.

Upgrade the Complainant's Performance Appraisals for the periods of:

1 July 1996 -30 June 1997; 1 July 1997 - 30 June 1998; and 1 July 1998

- 30 June 1999 from Fully Successful to an overall rating of Exceeds

Fully Successful, to include upgrading certain (to be designated by

complainant) job elements to Exceeds Fully Successful for each of the

three above-mentioned periods of time. This will be done within 90 days

of the date of this agreement.

Agency agrees to restore, within 90 days of the date of this agreement,

150 hours of sick leave and 50 hours of annual leave to the Complainant.

Complainant's use of this sick and annual leave will be in compliance

with applicable Agency directives.

Agency supervisors will work, in good faith, with Complainant to develop

a Position Description.

Upon receiving Complainant's written nomination for the WISE Award,

the Agency will, in good faith, give this award the same consideration

it would any other nomination.

The Agency will conduct an audit of Complainant's leave and payroll

records from August 1, 1999 to the date of this agreement. The Agency

will request complainant's assistance as needed. The Agency will also

consider any written or electronic submissions from Complainant that

may assist in the Agency completing this audit. The Agency will make

the necessary corrections to Complainant's leave and payroll records

if errors are discovered during the audit process. Notwithstanding the

results of the audit process, the Agency will restore 34 hours of sick

leave to Complainant in addition to the hours specified in 3.c. above.

The maximum hours to be restored as a result of the audit will be 165

hours of annual leave, 80 hours of sick leave and $829.72 of lost pay.

The Agency will assist Complainant in the processing of her OWCP and

disability retirement claims.

By letter dated March 23, 2001, complainant informed the agency that it

had breached the settlement agreement. According to complainant, the

agency completed its audit of her leave and payroll records and informed

her that she should have received advanced sick leave. Complainant

stated that the agency only wants to pay her advanced sick leave,

which she claims is contrary to the settlement. Complainant stated

that she is owed nearly $10,000.00 by the agency and that she would

only receive a maximum of $6,000.00 based on the agency's calculations.

Complainant argued that the 150.5 hours in question were not all advanced

sick leave. According to complainant, the agency is also not assisting

her in applying for a disability retirement.

In an agency decision dated April 25, 2001, the agency determined that

it did not breach the settlement agreement. The agency stated that it

has completed all of its obligations under the settlement. According to

the agency, the Human Resource Services Center submitted complainant's

disability retirement package to the Office of Personnel Management

on April 19, 2001. The agency stated that the audit results are final

and binding. Thereafter, complainant filed the instant appeal.

In response, the agency asserts that it has fully complied with the

terms of the settlement agreement. The agency maintains that with

regard to the settlement provisions cited by complainant, no errors were

discovered during the audit of complainant's leave and payroll records.

The agency stated that it nevertheless granted 150.5 hours of advanced

sick leave to complainant. According to the agency, the 150.5 hours

represent time cards that complainant and her supervisor signed or failed

to sign without explanation showing advanced leave. The agency notes that

complainant did not file paperwork through the Personnel Office to gain

proper approval for advanced sick leave, and that the time cards were

subsequently changed to leave without pay or annual leave. The agency

states that it granted the 150.5 hours of advanced sick leave because it

assumed that complainant had a reasonable belief the advanced sick leave

had been approved because the time cards showed advanced sick leave.

According to the agency, upon updating complainant's leave and payroll

records with 150.5 hours of advanced sick leave, complainant received

$8,318.96 for time previously documented as leave without pay. The agency

notes that the settlement states that the complainant will accept the

agency's audit of her leave and payroll records as final and binding.

The agency further notes that it restored 34 hours of sick leave to

complainant pursuant to this provision of the settlement.

With respect to the settlement term that states the agency will assist

complainant in the processing of her OWCP and disability retirement

claims, the agency states that its personnel met with complainant at her

home on three occasions to attempt to complete the OWCP and disability

retirement paperwork. The agency maintains that it completed its actions

for the OWCP claims on March 12, 2001. According to the agency, on April

19, 2001, its Human Resources Center forwarded complainant's disability

retirement application to the Office of Personnel Management for final

adjudication. The agency states that it has completed every action it can

with respect to the OWCP claims and the disability retirement application.

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.

If the complainant believes that the agency has failed to comply with

the terms of a settlement agreement or final action, the complainant

shall notify the EEO Director, in writing, of the alleged noncompliance

within 30 days of when the complainant knew or should have known of the

alleged noncompliance. The complainant may request that the terms of

the agreement be specifically implemented, or, alternatively, that the

complaint be reinstated for further processing from the point processing

ceased.

The Commission has consistently held that settlement agreements are

contracts between the complainant and the agency, and it is the intent of

the parties as expressed in the contract, not some unexpressed intention,

that controls the contract's construction. Eggleston v. Department

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 v. United States Postal Service, 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, 381 (5th Cir. 1984).

With regard to the merits of complainant's allegation of breach, we find

that complainant has not established that a breach occurred. We observe

that complainant agreed in the settlement that she would accept the

agency's audit of her leave and payroll records as final and binding.

The agency determined that there were no errors in complainant's leave

and payroll records. The agency further determined that the granting

of 150.5 hours of advanced leave to complainant was fair and appropriate

in light of its assumption that complainant had a reasonable belief that

the advanced sick leave had previously been approved. We find no basis

to conclude that the agency's audit was done in bad faith. Therefore,

pursuant to the settlement agreement, complainant must accept the

agency's audit of her leave and payroll records as final and binding.

With regard to the agency's obligation to assist complainant in the

processing of her OWCP and disability retirement claims, we find that

complainant has failed to refute the agency's position that it was

actively involved in assisting complainant with both her OWCP and

disability retirement claims. The agency established that it was an

active participant in the preparation of the claims and in facilitating

the processing of the claims. We find that complainant failed to show

that the agency breached the settlement agreement.

The agency's decision finding that no breach of the settlement agreement

occurred is AFFIRMED.

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 (S0900)

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 (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

September 10, 2002

__________________

Date