0120100819
05-23-2012
Peter P. McKeown, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Peter P. McKeown,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120100819
Agency No. 2004-0637-2006102904
DECISION
Complainant filed the instant appeal with this Commission concerning a claim that the Agency failed to comply with the terms of a February 26, 2008 settlement agreement. The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
BACKGROUND
During the relevant time, Complainant was terminated from his position as the Chief of Surgical Services at the VA Medical Center in Asheville, North Carolina. Believing that he was subjected to unlawful discrimination, Complainant contacted an EEO Counselor.
On February 26, 2008, Complainant and the Agency entered into a settlement agreement to resolve the matter. The agreement provided, in pertinent part, that:
2. Agency's Undertakings: In exchange for the promises and undertakings by the Complainant, and the parties mutual undertakings, the Agency agrees as follows:
2.1 The Agency agrees to pay Complainant compensatory damages of two hundred and twenty-five thousand dollars ($225,000.00), which will be reported as income to the Internal Revenue Service, and payable to the Complainant...
2.2 The Agency agrees to process back pay, with interest, from the period of November 1, 2005 to July 21, 2007, upon receipt of the documentation set forth in paragraph 1.5 above.
2.3 Upon receipt and review of an attorney's fee invoice and fee request, the Agency agrees to pay Complainant's attorney fees in an amount of forty-five thousand dollars ($45,000.00).
In correspondence dated May 2, 2008, Complainant shared concerns with the Agency regarding its calculations of back pay due under provision 2.2 of the agreement.1 On June 2, 2008, Agency Regional Counsel responded and addressed each issue in turn. Regarding military pay, the Agency agreed with Complainant's assertion that his military pay should not have been offset and indicated that its calculations were accordingly amended. As for money Complainant earned while working in Reno, the Agency found that it required additional information from Complainant in order to properly determine whether his expenses, which he claims should be used to off-set his income, were ordinary and necessary. Complainant was asked to supplement the information he had provided. Finally, the Agency addressed Complainant's assertion that it failed to describe how accrued leave was handled by including a copy of the calculation worksheet.
By letter dated October 30, 2009, the Agency provided Complainant with its final resolution of these back pay issues. According to the Agency, Complainant was paid the following amounts: $225,000 on March 7, 2008; $86,394.61 and $23,044.85 on December 8, 2008. He was also sent IRS Forms 1099 reflecting such payments.
Thereafter, Complainant filed the instant appeal. Complainant asserts that the Agency continues to be in breach of the agreement. Specifically, he still contends that Agency has improperly off-set his military pay; failed to properly deduct his expenses for working in another state from his earnings; refused to pay him $15,000 in performance pay; and not provided a full accounting of how his leave was calculated and credited.
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 Hvon 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).
As noted above, Complainant contends that the Agency has not complied with the settlement agreement with respect to improperly off-setting his back pay with his military pay; failing to properly deduct his ordinary and necessary business expenses from his earnings for work he performed in another state; refusing to pay him $15,000 in performance pay; and not providing a full accounting of how his leave was calculated and credited. On appeal the Agency has submitted an affidavit from its Payroll Manager, as well as the "Backpay Worksheet" utilized to calculate the monies owed to Complainant.
We find that the Payroll Manager attests, and the worksheet reflects, that Complainant's military pay was not considered outside earnings or used as an off-set (deduction) from his gross back pay. Complainant has not produced sufficient evidence to the contrary. Therefore, we find no error on the part of the Agency with regard to its treatment of Complainant's military pay.
Contrary to Complainant's assertions, the Agency also contends that it has not refused to deduct business expenses from Complainant's earnings from working in Reno that was used as an off-set to his gross back pay. The Payroll Manager notes that Complainant initially submitted documentation of such expenses in February 2008, but as reflected by a copy of the June 2008 Agency letter, he was asked to provide additional information so that the Agency could determine whether the expenses were "ordinary and necessary." According to the Payroll Manager, Complainant has failed to submit this requested information. Complainant has not contradicted this assertion. Accordingly, we again find Complainant has not established non-compliance with the agreement in this regard.
As for the $15,000 performance pay, the Agency contends that Complainant is simply not entitled to it and has not received performance pay in the past. There is no evidence in the record or provided by Complainant that explains performance pay or the circumstances under which an employee is entitled to receive it. It appears that it is discretionary and the settlement language itself does not expressly provide for performance pay. Therefore, we do not find evidence that the Agency was required to provide such payment to Complainant under the terms of the settlement agreement.
Finally, we consider Complainant's claim that the Agency has failed to present him with the calculations used to determine his leave. However, the record establishes that the Agency did, in fact, provide Complainant with such documentation in its June 2, 2008 correspondence from the Regional Counsel. According to the documents provided on appeal, Complainant had nineteen days of additional accrued annual leave for the relevant time period. After deducting nine days of vacation used, for a revised total of ten days of annual leave, the back pay lump sum was adjusted to include an additional $10, 643.60.
For the reasons stated above, we find that the Agency has not breached the February 26, 2008 settlement agreement. The Agency's determination that it is in compliance with the settlement was proper and is hereby AFFIRMED.
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), at 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 (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 (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
May 23, 2012
__________________
Date
1 Although the instant record does not contain a copy of Complainant's letter, we have reviewed the Agency's June 2, 2008 reply which makes reference to the document.
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0120100819
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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