0120072181
04-08-2009
Ilene Hollman-Giles, Complainant, v. Paul F. Prouty, Acting Administrator, General Services Administration, Agency.
Ilene Hollman-Giles,
Complainant,
v.
Paul F. Prouty,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120072181
Agency Nos. R3FNIG2 and R3FSSIG04
DECISION
Complainant filed an appeal with this Commission from a final decision
by the agency dated March 1, 2007, finding that it was in compliance
with the terms of the August 30, 2006 settlement agreement into which
the parties entered.
The settlement agreement provided, in pertinent part, that the agency
will:
2. Remove and destroy from all official personnel files all AWOLS,
disciplinary actions, proposed or taken, against Complainant by the
Agency, to the extent that these documents ever existed. This includes
the Letter of Reprimand, the One Day Suspension, and the Proposed
Suspension at issue in this case. [Identified agency officials] will
remove and destroy all documents and files related to complainant. The
Agency will send to complainant's attorney notice of compliance with
this provision within 30 calendar days of the effective date of this
Agreement.
. . . .
5. Retroactively promote Complainant to the position of Supply
Management Specialist, GS-2003-09, effective January 18, 2001, as
follows;
a. To the position of Supply Management Specialist,
GS-2003-09, effective January 18, 2001 and will determine the
appropriate step based on Complainant's Grade 07 step as of
January 17, 2001.
b. To the position of Supply Management Specialist,
GS-2003-l1, effective January 18, 2002, at the appropriate step
given the terms of paragraph a.
c. To the position of Supply Management Specialist,
GS-2003-12, effective January 18, 2003, at the appropriate step
given the terms of paragraph b.
d. Provide Complainant with regularly scheduled step
increases after January 18, 2003, until the date of her
resignation.
6. Provide Complainant with all back pay and benefits based
on the above retroactive promotions, including but not limited to,
regular step increases, TSP [Thrift Savings Plan] payments, retirement
payments, etc. for the period January 18, 2001[,] through the date of
her resignation.
a. Such back pay will be made within 45 calendar days of
the effective date of this Agreement.
b. A complete accounting of the back pay calculations
will be sent to complainant's attorney within 20 calendar
[days] of the payment being made. The payment will be sent to
[complainant's attorney].
c. The parties agree that Complainant shall have 60 calendar
days to review said calculations prior to notifying the Agency
whether she believes the payments are incorrect.
7. Amend Complainant's time and attendance cards to change 17 days
of LWOP [Leave without Pay] to Annual Leave, to be used by Complainant
between August 30, 2006[,] and September 22, 2006.
By letters to the agency dated October 23, 2006; November 15, 2006;
November 20, 2006; and January 10, 2007, complainant alleged that
the agency was in breach of the settlement agreement, and requested
that the agency specifically implement its terms. Specifically,
complainant alleged that the agency failed to provide documentation
that it removed and destroyed all information identified in paragraph
(2), failed to properly implement the step increases required, failed
to amend complainant's time and attendance records in accordance with
paragraph (7), and failed to provide a full and accurate accounting of the
agency's calculations used in determining the amount of back pay due her,
taking into consideration the promotion and pay increases contemplated
by paragraphs (5) and (6). Moreover, complainant claimed that the
agency had failed to respond to her several notices of noncompliance,
requiring her to initiate an action to enforce the settlement agreement.
In its March 1, 2007 decision, the agency concluded that it had complied
with the terms of the settlement agreement. Specifically, the agency
stated that complainant was promoted in accordance with the agreement,
received the appropriate step increases, and received payment for back
pay and attorney's fees in accordance with provisions (5) and (6) of
the agreement. Moreover, the agency stated the identified records in
provision (2) were destroyed and stated the agency granted complainant
17 days of administrative leave instead of changing the previously
issued LWOP to annual leave. In conjunction with the issuance of its
determination on March 1, 2007, the agency, for the first time, provided
complainant with its back pay calculations and documentation to show
that it destroyed the documentation specified in provision (2).
On appeal, complainant states that the agency's compliance has been
delayed for months and that ultimately, the agency failed to comply with a
number of provisions of the agreement. Specifically, complainant claims
the agency did not correctly implement the step increases required in
the agreement. As a result, complainant claims the agency erred in
its calculation of the back pay due to her. With regard to the back
pay calculations, complainant also claims that the base rates used by
the agency appear to be incorrect. Complainant requests that the agency
correct its calculations of back pay and pay her the additional amounts
due, together with an award of interest for its delay in providing
her with its calculations. Complainant also notes that although the
agency was supposed to remove and destroy the documentation specified
in paragraph (2) of the agreement by September 30, 2006, it was not
until March 1, 2007, that it provided information to support that it
came into compliance with this provision on November 16, 2006, six
weeks late. Further, complainant states the agency failed to amend her
time and attendance record in accordance with the settlement agreement.
Complainant argues that due to the agency's failure to timely comply
with the settlement agreement she was forced to pursue enforcement and
requests an award of attorney's fees.
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. Department of Defense,
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. 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 O 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 (5th Cir. 1984).
In the instant case, we find that the agency breached the settlement
agreement of August 30, 2006, by failing to perform as it was obligated
by the deadlines specified in the agreement. With regard to provision
(2), we find that the agency breached the settlement agreement as a
result of its delay in providing complainant with confirmation of its
performance under this provision. Specifically, we note despite the
language in the agreement that the agency will send notice of compliance
with this provision within 30 calendar days of the effective date of
this agreement, it was not until March 1, 2007, that the agency provided
complainant documentation that it purged complainant's personnel file
on November 16, 2006, six weeks late.
With regard to provisions (5) and (6), we find no evidence that the
agency provided complainant with the calculation of her back pay award
"within 20 calendar [days] of the payment being made." The record reveals
that complainant received a lump sum of $57,953.42, on October 26, 2006,
without any accompanying accounting following within 20 calendar days.
The record reveals the agency did not provide complainant an accounting
of the funds paid until March 1, 2007. We note that upon receipt
of the accounting in March 2007, complainant has discovered what she
claims is an error in the calculation of her back pay award based on
what she characterizes as an incorrect computation of "waiting time"
for several within grade increases, and errors in the base salaries
used by the agency. In the absence of any statement from the agency
addressing the apparent errors, we find it appropriate to remand the
settled matter to the agency to resolve the errors that complainant has
noted in the agency's calculations and for the determination of an award
of interest on any unpaid sums.
With regard to provision (7), we find the agency breached the settlement
agreement by failing to change complainant's time and attendance records
as specified in the agreement. The agency claims by granting complainant
17 days of administrative leave for the period specified it has complied
with the agreement. However, we note the agreement requires the agency
to amend complainant's time card to change 17 days of LWOP to annual
leave and not administrative leave. Therefore, we find the agency is
not in compliance with provision (7).
We find the agency's failure to provide complainant confirmation
of the performance of the terms in the settlement agreement prompted
complainant to notify the agency on repeated occasions of its obligations
and ultimately, to file the instant appeal to enforce the terms of
the agreement. Accordingly, we find an award of attorney's fees is
appropriate.
For the foregoing reasons we VACATE the agency's final decision and REMAND
the matter to the agency for resolution of complainant's back pay award,
appropriate step increases, amendment of time and attendance records,
for an award of interest on any additional unpaid sums due complainant
and for payment of attorney's fees for enforcement of the settlement
agreement and this appeal, as directed herein.
ORDER
Within thirty calendar days of the date this decision becomes final,
the agency shall:
1. Produce evidence that it has provided complainant the
appropriate step increases due under provision (5) of the August
30, 2006 settlement agreement. The agency shall place evidence
in the record of its compliance with this provision and adjust,
if necessary, any step increases due.
2. Contact complainant for the purpose of review of complainant's
objections to the agency's calculations of the sums due under provision
(6) (back pay) of the August 30, 2006 settlement agreement. The agency
shall place evidence in the record of its compliance with this provision
and provide complainant with any additional sums due within thirty days
of the date the parties have resolved the outstanding back pay issues.
2. Pay complainant interest on any additional sums due
complainant from October 14, 2006, through the time said back pay
is paid to complainant. The agency's payment shall be accompanied
by an accounting of its calculation of the interest payment due.
3. Amend complainant's time and attendance cards to change 17
days of LWOP to annual leave, to be used by complainant between
August 30, 2006, and September 22, 2006.
4. Request that complainant submit a fee petition for those
attorney's fees and costs incurred in obtaining the agency's
compliance with the August 30, 2006 settlement agreement.
Within thirty days of receipt of complainant's attorney's fees
petition, the agency shall pay complainant's attorney's fees.
Within sixty calendar days of the date this decision becomes final, the
agency shall issue a new decision determining its compliance with the
settlement agreement of August 30, 2006 and this order. A copy of the
new decision must be sent to complainant and to the Compliance Officer
as referenced below.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/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 (K1208)
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 (M1208)
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 (R0408)
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 (Z1008)
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
April 8, 2009
__________________
Date
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0120072181
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120072181