Janice D. Jones, Complainant,v.Mike Donley, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionJul 13, 2010
0120101588 (E.E.O.C. Jul. 13, 2010)

0120101588

07-13-2010

Janice D. Jones, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.


Janice D. Jones,

Complainant,

v.

Mike Donley,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 0120101588

Agency No. 9V1M09116

DECISION

Complainant filed a timely appeal with this Commission after notifying

the Agency of her allegation that it was not in compliance with the

terms of the September 24, 2009 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. The Agency subsequently issued a Decision

dated March 11, 2010 finding that it had not breached the Agreement.

BACKGROUND

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

agreed:

(1) To restore all sick leave used during the period 23 Oct 2008

through 24 Sep 2009;

(2) Complainant will be able to earn Credit Hours beginning Pay

Period 11 Oct 2009. If it is determined by the Agency that the Credit

Hour process is being abused, Complainant will become immediately exempt

from earning Credit Hours

By an email to the Agency dated December 15, 2009 and in subsequent

emails, Complainant alleged that the Agency was in breach of the

settlement agreement, and requested that the Agency specifically

implement its terms. Complainant produced a November 7. 2009 letter

from the Defense Finance and Accounting Service (DFAS) stating that

an overpayment had been created in her pay account and notifying her

that she must repay $1,648.34. Complainant's specific allegation to the

Agency was that instead of restoring her sick leave, as per the Agreement,

the Agency had awarded her money, which then put in her in debt to DFAS.

Complainant further alleged that the agency failed to restore 174 hours

of sick leave.

In its March 11, 2010 Decision, the Agency concluded that in October 2009,

complainant's sick leave had been changed to Leave Without Pay (LWOP)

and that her sick leave had been restored, but acknowledged that this

action had caused a debt for complainant. The Agency further noted that

"[a]fter being aware of the debt, the agency generated another action on

or about 17 Nov 2009, to place you in a duty status during the period of

absence to be able to correct your time and attendance record to assure

you do not incur a debt. Additionally on 4 Jan 2009, the agency provided

documentation to show they were following up to ensure the changes are

made and will continue to do so until final action is taken by DFAS."

On appeal, complainant states in a brief dated February 8, 2010, that

the Agency's action was intentional and caused her emotional and physical

distress as well as placing her in debt. See Complainant's Appeal Brief,

p. 2. In addition, complainant alleges that the agency "refused to

correct the problem." Id. In its response brief, dated April 20, 2010,

the Agency argues that, while an error occurred, "corrective action was

promptly taken, as well as action to ensure the complainant did not suffer

any financial harm due to the unfortunate payroll system error. The error

has now been corrected. The complainant's leave balances include the

restored leave, and the accounting errors have been corrected, so that

there is no employee debt associated with the agreement." Agency Brief,

p. 3. In addition, the Agency argues that complainant was only entitled

to restoration of approximately 104 hours of leave, not the 174 hours

she claims. See id.

ANALYSIS AND FINDINGS

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, the Agency agreed to restore complainant's sick

leave. Upon review, we are unable to determine whether the Agency complied

with the terms of the agreement because the record is inadequately

developed. While the Agency has provided documentation purporting to

show that complainant's leave balance has been fully restored, such

documentation is unclear and indecipherable to someone not familiar

with the Agency's method of recording employee leave usage and balances.

In addition, the record does not contain any affidavits from management

officials fully explaining the Agency's actions under the settlement

agreement. Because of the deficiencies in the record, we are unable to

ascertain whether the Agency complied with the settlement agreement.

Accordingly, we VACATE the final decision and REMAND this matter to

the agency for a supplemental investigation and further processing in

accordance with this decision and the ORDER below

ORDER

The Agency is ORDERED to undertake the following actions:

1. The Agency shall supplement the record with affidavits and

other documentary evidence that reveal whether it complied with the

provisions of the September 24, 2009 settlement agreement. Specifically,

the Agency shall supplement the record with evidence that reveals in

layman's terms how much leave complainant was entitled to have restored

under the agreement. Further, the Agency shall supplement the record

with documentation that explains in detail how it allegedly negated

complainant's debt with DFAS. Finally, the Agency shall supplement the

record with affidavits from pertinent Agency officials specifically

addressing complainant's breach claim and clearly explaining any

documentation in the record that is pertinent to complainant's breach

claim. Complainant shall comply with the Agency's request for information

pertinent to its compliance with the terms of the settlement agreement.

Complainant will be provided a copy of the agency's supplemental

investigation and will be given the opportunity to provide a statement

and/or other evidence.

2. Within ninety (90) calendar days from the date this decision becomes

final, the Agency shall issue a new determination that fully explains

whether it breached the settlement agreement. The Agency shall provide

complainant with appeal rights to the Commission.

3. A copy of the Agency's new determination regarding compliance with the

settlement agreement must be sent to the Compliance Officer referenced

below.

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

July 13, 2010

__________________

Date

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0120101588

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120101588