0120170334
12-28-2017
Stacie D,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Stacie D,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120170334
Agency No. RD200900425
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated September 14, 2016, finding that it was in compliance with the terms of the 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.
BACKGROUND
At the time of events giving rise to this compliance action, Complainant worked as an Area Technician at the Agency's Halifax facility in Halifax, North Carolina.
On January 31, 2013, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The Agreement was subsequently amended by an Addendum dated March 5, 2014. The settlement agreement, as amended, provided, in pertinent part, that:
(1) The Agency agrees to pay Complainant $3,000.00 (Three Thousand Dollars) in satisfaction of her potential claim against the Agency for noncompliance with the original Settlement Agreement;
(2) The Agency agrees to retroactively award Complainant a promotion from her position of Area Technician, GS-1101-07, step 8, to Area Specialist, GS-1165-9, step 3, with an effective date of November 9, 2008. Complainant will be paid back pay and the value of forgone benefits, representing the difference in value between the compensation package for grade 7, step 8, and grade 9, step 3 (or higher) for the period of time between November 9, 2008, and her retirement date of December 2, 2011. This amount will be calculated by USDA Rural Development's Office of Human Resources, using standard techniques for the calculation of back pay and benefits in such circumstances. Complainant will be retroactively credited with having received within-grade step increases that would have occurred during the period between November 9, 2008, and her retirement date of December 2, 2011;
(3) The Agency will replace Complainant's form SF-50, dated December 2, 2011, showing her as having retired from the position of Area Technician...as having retired from the position of Area Specialist, GS-1165-9;
(4) It is the overall intent of the preceding paragraphs to see to it that Complainant is made whole and received the full amount of money, both retroactively, in the present, and in the future, that would have been due her if she had been promoted to Area Specialist, GS-1165-9, step 3, with an effective date of November 9, 2008; and,
The Complainant agrees to:
(1) Accept the payments specified by the Agency above in full satisfaction of her claims for compensatory and other damages in this case...They are also accepted in satisfaction of any claims for pecuniary loss that may occur in the future, including front pay for lost promotions; and per the addendum;
Accept the payment specified by the Agency above in full satisfaction of her potential claim for noncompliance with the original Settlement Agreement, based on the agency's failure to ensure that she would receive back pay, retirement pay, and other compensation based on a promotion to Area Specialist, GS-1165-9, step 4, with an effective date of November 9, 2008, rather than a promotion to Area Specialist, GS-1165-9, Step 3, with an effective date of November 9, 2008; and
(2) Not request reinstatement of her complaint and / or appeal...based on the Agency's failure to ensure that she would receive back pay, retirement pay and other compensation for noncompliance with the original Settlement Agreement.
The record shows that, on July 19, 2013, she was promoted to the Area Specialist, GS-1165-9, Step 3, with an effective date of November 9, 2008. She was also retroactively credited with having received two within-grade step increases. The Agency also issued Complainant a lump sum payment of $3,000.00.
On September 29, 2015, Complainant received an email from the Office of the General Counsel advising her that the Agency turned over all the relevant information to the Office of Personnel Management (OPM) to process her grade change and adjudicate her new annuity. OPM notified the Agency's Human Resources that they completed adjudicating Complainant's adjustment.
Following notification of an error on January 12, 2016, the Agency requested an adjustment in her annual leave lump sum distribution. Complainant received a check, dated January 14, 2016, for $430.77, for her corrected annual leave claim for 235 hours. The Agency provided OPM with a revised retirement date which would allow OPM to adjudicate and revise Complainant's annuity payments. The adjusted annuity included additional back pay related to the adjustment.
Breach Claim
By letter to the Agency dated January 25, 2016, Complainant alleged that the Agency was in breach of the settlement agreement, and she was seeking $200,000.00 to compensate her. Specifically, Complainant alleged that the Agency failed to "start me off with GS 9, step 4." Although she signed the agreement, Complainant argues that she should have received a higher step based on her salary at the time of the Agreement.
Agency Decision
The Agency concluded that it complied with the Agreement. It acknowledged that an error had been made by the Office of Human Resources and that it did not strictly comply with the Section 3 of the Addendum which required the Agency to carry out all obligations within 90 days of March 5, 2014. The Agency stated that it cured the breach after notification by Complainant of the breach claims.
CONTENTIONS ON APPEAL
Complainant argues that the Agency was not in accordance with the March 5, 2014 addendum, because "the processing should have been completed" within 90 days, as required by the Agreement.
ANALYSIS
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).
To the extent that the Agreement purported to waive future claims or prohibited Complainant from filing an appeal to the Commission regarding compliance, we construe those provisions to be void and unenforceable. Complainants have the right to appeal to the Commission for enforcement and an agreement can only waive existing, known disputes.
Those provisions are severable from the other provisions. Otherwise, we find that the Agreement is valid and binding on both parties.
In the instant case, the Agreement required the Agency to retroactively promote Complainant to a GS-9, Step 3, effective November 9, 2008. The record shows that this was done. In addition, the Agency recognized her for two subsequent Within-Grade adjustments to GS - 9, Step 4 on November 8, 2009, and to GS-9, Step 5 on November 6, 2011. Further, the Agency recognized that Complainant was entitled to a retroactive adjustment, plus interest. In addition, the Agency submitted a Payroll Action Request dated July 19, 2013, to cover the adjustment period from November 9, 2008 to December 2, 2011 for the pay period 24/11.Complainant received a check for $8,486.62 on July 30, 2013. Thereafter, she requested a break-down of the difference.
We find that Complainant failed to show that the Agency was in breach of the Settlement Agreement. To the extent that the Agency breached the Agreement, we find that its actions following receipt of the breach claims cured the breach.
CONCLUSION
Accordingly, for the reasons stated herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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 tends 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission.
The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
December 28, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120170334