01A02104_r
02-27-2002
Jean Redmond, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Jean Redmond v. Department of Agriculture
01A02104
.February 27, 2002
Jean Redmond,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A02104
Agency No. 98-0175
DECISION
Complainant filed a timely appeal with this Commission from an agency
final decision dated December 10, 1999 finding no breach of the August
5, 1991<1> and August 19, 1991 settlement agreements into which the
parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b).
We accept the appeal. See 29 C.F.R. � 1614.405.
The above referenced settlement agreements obligated the agency to
provide complainant with an assignment to the Inter-American Institute
for Cooperation on Agriculture (IICA), in Costa Rica, on the rolls of
the Office of Advocacy and Enterprise (the Civil Rights Office of the
agency, herein referred to as the �OAE�), which would reimburse IICA
for her salary and other expenses. In particular, the August 5, 1991
settlement agreement, jointly entered into by the IICA and the agency,
specifically obligated the IICA to provide complainant with: �the
necessary documents to assure her immunity from taxes by the government
of Costa Rica� (herein referred to as the �tax immunity provision�).
Prior to her retirement from the agency in October 1996, complainant
sought reimbursement for taxes in the amount of $18,083.00 which she
had paid to the Costa Rican government, providing certain documentation
and an itemized list. The matter was investigated by the agency, and by
memorandum dated January 6, 1997, the Director of OAE notified complainant
that based on its obligation to her under the tax immunity provision
of the settlement agreement, the full amount would be reimbursed.
However, when complainant sought payment on April 16, 1997, the agency, by
letter dated June 18, 1997, through a new OAE Director, denied liability
for reimbursing complainant for these taxes. Specifically, the agency
averred that the IICA indicated it issued complainant a manual outlining
the necessary procedures for requesting tax immunity, and provided her
with all necessary documents and assistance, when she requested it,
obtaining these tax waivers on numerous occasions. However, the IICA
indicated that complainant failed to follow properly these procedures
regarding the itemized taxes, and therefore incurred a tax liability. In
particular, the agency stated that complainant exceeded the six-month
time limit to request tax exemption. Moreover, regarding the $7,5000.00
tax assessed on complainant's new car purchased in the United States,
the IICA noted that despite many attempts to have the tax waived, it was
impossible under the Costa Rican regulations because complainant failed
to �nationalize� her older car, before importing the new one, and allowed
the new car to remain in Customs storage for approximately one year.
In a letter dated July 30, 1997, complainant disputed the agency's claim
that she was to blame, arguing that she followed the proper procedures
regarding the import of her second car, and contending that the IICA
was responsible for the one-year delay in redeeming it from Customs
storage, thereby incurring an excessive tax. Complainant further
claimed that the IICA's shoddy administrative processing was to blame
for her incurring these taxes, making reference to examples of delay
and mistake. Complainant filed breach claims in September and November
1997, claiming that the agency failed to undertake measures to obtain
tax immunity regarding the itemized list, as per its obligation under
the tax immunity provision in the August 5, 1991 settlement agreement.
Therefore, complainant claimed that the agency must reimburse her for
these taxes, with interest, and for attorney fees. When the agency
failed to respond, complainant filed an appeal with this Commission.
In Redmond v. Department of Agriculture, EEOC Appeal No. 01981782 (June
7, 1999), the Commission determined that the record was insufficient to
determine the issue of breach raised by complainant. Accordingly, the
Commission Remanded the case back to the agency with an Order to conduct
a supplement investigation to obtain evidence, from both complainant
and the agency:
(a) on the issue of whether the [tax immunity] provision obligates
the agency to reimburse complainant for taxes paid to the Costa Rica
government;
(b) whether complainant had been provided with all necessary documents
needed to request tax immunity;
(c) whether complainant properly followed the procedures to request
tax immunity;
and
(d) to verify payment of the taxes claimed and the amounts.
The Commission also ordered the agency to issue a final decision on
complainant's breach claim within ninety (90) days of the date that the
Commission's decision became final.
On December 10, 1999, the agency issued the final decision which is
the subject of the instant appeal, finding that it had fully complied
with the settlement agreements, including the tax immunity provision
at issue. The agency again determined that complainant is at fault
for incurring the taxes in dispute, and further determined that the tax
immunity provision only requires that it provide complainant with the
needed documents to request tax immunity from the Costa Rican government,
neither guaranteeing immunity nor agreeing to reimburse complainant for
taxes paid to Costa Rica. However, while we note that the final agency
decision acknowledged the Commission's previous determination and remand,
it made no reference to the supplemental investigation ordered by the
Commission. Furthermore, review of the record reflects that the agency
failed to undertake this investigation.
On appeal, complainant verifies that the agency did not contact her to
request any evidence pursuant to the Remand Order, and claims that the
agency ignored the Commission's Order. As before, complainant avers that
the agency is to blame for the taxes she incurred. Complainant contends
that the agency not only failed to provide the documents specified
in the provision at issue, but engaged in numerous identified acts of
administrative delay and mistake which resulted in the denial of tax
immunity. Complainant contends that this matter was investigated prior
to the issuance of the January 6, 1997 memorandum notifying her that the
agency agreed to reimburse her for the full amount of taxes claimed.
In effect, complainant argues that the January 6, 1997 memorandum is
evidence that the agency acknowledged its culpability in this matter,
as well as its resulting obligation under the settlement agreement.
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 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 there is no dispute that the provision
at issue obligates the agency to provide �official documents� as needed
to process complainant's requests for tax immunity from the Costa Rica
government. However, review of the record reflects that obtaining tax
immunity not only entails complainant requesting, and the IICA providing,
certain forms to complainant, but also requires an active role on the
part of the IICA in submitting these completed documents to the Costa
Rican government, and following up on these requests as necessary.
Therefore, we agree that this provision guarantees tax immunity to
complainant; further it requires the IICA to undertake all necessary
actions to accurately and timely process and submit complainant's requests
for tax immunity to the Costa Rica government. Accordingly, we find
that the issue before us is whether the IICA failed in this obligation
(i.e. breached the tax immunity provision), thereby resulting in the tax
liability incurred by complainant. If so, we find that the appropriate
remedy to cure such a breach would be reimbursement by the agency for
those taxes, as well as payment for attorney's fees associated with
obtaining reimbursement.
Here, complainant denies any error on her part regarding the itemized
taxes, claiming that the IICA's delay and administrative error resulted
her tax liability. She argues that she presented documentary evidence of
the taxes she paid to her Director, and that the matter was investigated,
and the agency acknowledged its obligation to reimburse her for these
taxes in its January 6, 1997 memorandum. On the other hand, complainant
argues that the agency presents no evidence to prove that she was to
blame for the denials of tax immunity, and further requests that the
Commission sanction the agency for failing to comply with the remand
Order by drawing an adverse inference against it in this matter.
Upon review of the record, it appears that the agency, in prior
communications with complainant, as well as in its final decision,
rescinds its January 6, 1997 memorandum, and instead determined that
complainant did not follow proper procedures to obtain tax immunity.
However, we concur with complainant that the record is devoid of any
evidence to support this conclusion. Specifically, the agency claims that
complainant, �in some instances� submitted requests after a six-month
deadline, but provides no evidence to substantiate the applicability of
this deadline, or evidence that complainant violated it. Furthermore,
the agency claims that complainant submitted a request for construction
material which was denied because it is not eligible for an exemption, but
fails to provide evidence that this type of item cannot be exempted under
the applicable regulations. Moreover, while the agency suggests �illegal�
actions by complainant regarding the impounding of her second car,
which resulted in excessive storage costs and taxes, it again provides
no substantiating evidence. The agency also claims that complainant was
not entitled to the routine issuance of an identification card as is
issued to diplomats to display to avoid paying certain taxes (presumably
referring to the car fuel, lodging, plane ticket and restaurant taxes
for which complainant is claiming reimbursement), and that she, as a
federal employee, had to follow certain procedures to obtain the card.
However, the agency presents no evidence supporting this assessment. We
note complainant's argument that all of the other federal employees (who
were not �diplomats�)where she worked were routinely issued this card.
The agency further asserts that because the IICA successfully assisted
complainant in obtaining tax immunity regarding other requests, her
failure to do so regarding the items at issue must have been her own
fault.
The Commission has long upheld the established legal principle that the
agency bears the burden of providing evidence or proof in support of its
final decision. See Marshall v. Department of the Navy, EEOC Request
No. 05910685 (September 1991). In this case, we find that despite
the Commission's Remand Order which specifically identified the type
of evidence needed in this case by both parties, the agency failed to
submit evidence to show that complainant's liability for these taxes,
from which she should have been exempt, was the result of her own errors.
The agency also presented no evidence to show that its January 6,
1997 memorandum improperly concluded that the agency was obligated
to reimburse complainant for these taxes pursuant to the tax immunity
provision settlement agreement.
Accordingly, we REVERSE the agency's decision finding no breach of the
tax immunity provision in the August 5, 1991 settlement agreement, and
REMAND the case to the agency to provide complainant with the remedies
specified in the ORDER below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final:
1. The agency shall pay complainant the amount of $18,083.00 to reimburse
her for payment of Costa Rica taxes for which she should have been immune.
2. The agency shall pay complainant attorney's fees, as more fully
specified in the paragraph 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (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 (R0900)
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 (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
February 27, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Review shows that this settlement agreement was actually executed on
August 23, 1991. However, because both parties reference the August
5, 1991 date in identifying this document, for the sake of clarity,
we shall continue to identify this document as the August 5, 1991
settlement agreement.