01985765_r
12-01-1999
Theresa M. Brown, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Theresa M. Brown, )
Complainant, )
)
v. ) Appeal No. 01985765
) Agency Nos. DT-97-008
William S. Cohen, ) DT-97-030
Secretary, ) DT-97-041
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
____________________________________)
DECISION
By letter dated June 16, 1998, complainant alleged breach of a December
8, 1997 settlement agreement that she entered into with the agency.
After receiving no response from the agency, complainant timely appealed
with this Commission.<1> See 64 Fed. Reg. 37,644, 37,659, 37,660
(1999)(to be codified and hereinafter referred to as EEOC Regulations 29
C.F.R. ��1614.402, .504(b)). The agency later responded to complainant's
allegations of breach on October 5, 1998.
The settlement agreement provided, in pertinent part, that:
In return for withdrawal of the subject complaint/appeals, the agency
agrees to provide the complainant/appellant with the following:
Out of pocket expenses in the amount of $210.44.
Differential pay in the amount of $710.12.
Annotation of her Personnel File to indicate that she served in a WL-5/4
Packer position for a period of 120 days.
Restoration of 56 hours of sick leave to her account.
Representation/attorney fees of $1122.50.
. . .
This Agreement constitutes the complete understanding between Complainant
and the Agency. The Agency will not be liable for any costs to the
Complainant associated with the complaint/appeals except as stated in
Paragraph 2 of this Agreement. No other promises or agreements shall
be binding unless signed by both parties.
By letter dated June 16, 1998, complainant alleged that the agency
breached the settlement agreement. Specifically, complainant alleged
that the agency failed to provide differential pay of $710.12, failed to
annotate complainant's file to reflect that she served in a WL-5/4 Packer
position for 120 days, and failed to restore 56 hours of her sick leave.
Complainant requests that �back pay due be automatically and properly
adjusted for accrued interest. . . .�
In its October 5, 1998 response, the agency admits that it had not
complied with the settlement agreement by June 16, 1998. The agency
�regret[s] the circumstances that prevented us from complying with these
terms of the Settlement Agreement in a more timely manner,� but fails
to explain why it could not comply earlier. The agency also denies
any responsibility for interest or further costs, due to provision (4)
of the settlement agreement.
The agency also included a letter from the EEO Manager, dated September
10, 1998. This letter contends that the agency complied with the
settlement agreement, and provides documentation to support its claim.
This documentation includes a �Pay Adjustments� form in the amount of
$710.12, dated September 1, 1998, a leave status form with an illegible
date, and an SF-52 approved on May 29, 1998, giving complainant credit
for a 120-day detail to a Packer position in 1997.
ANALYSIS AND FINDINGS
EEOC Regulations provide that any settlement agreement knowingly
and voluntarily agreed to by the parties, reached at any stage of the
complaint process, is binding on both parties. See 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter referred to as EEOC
Regulation 29 C.F.R. �1614.504(a)). 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 (Dec. 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 construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (Aug.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 (Dec. 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 present case, the agency failed to comply with the settlement
agreement until September 1998, some ten months after the agreement
was signed. The agreement, however, does not provide a time frame for
compliance with its provisions. In such circumstances, the Commission
has held that performance of the contract is required within a reasonable
amount of time. See Gonzales v. Department of the Treasury, EEOC Request
No. 05930921 (Feb. 10, 1994).
Where the Commission has no information concerning the reasons for
potentially unreasonable delays, it has remanded claims for such
a determination. See Garrison v. Department of Transportation, EEOC
Request No. 05950867 (Apr. 24, 1997). In Garrison, the agency was
obligated to calculate and pay a back-pay award under a settlement
agreement, but failed to tender payment until eight months after the
agreement was signed. The Commission gave the agency an opportunity on
remand to explain the reasons for its delay, and to determine whether
it was reasonable. The agency in Garrison also acted swiftly after
receiving the complainant's allegation of breach - nine days after
the allegation was levied, the back-pay calculation was completed and
tendered; a few weeks later, the EEO Manager made an internal inquiry
to ensure that the agency was in compliance with the agreement.
Unlike in Garrison, the agency in the present case had nothing
to calculate. The settlement agreement provided an exact figure
for differential pay ($710.12), sick leave restoration (56 hours),
and detail credit (120 days in a Packer position). The agency did
not comply with the agreement until ten months after it was signed
despite the exact specifications for each provision, and waited four
months after complainant alleged breach. Further, it appears that the
agency timely paid complainant for out-of-pocket expenses and fees,
but did not reimburse complainant for differential pay, sick leave,
or for 120 days of work as a packer until much later, even though no
calculation was required to determine any remedy under the agreement.<2>
Therefore, the Commission finds sufficient evidence to ascertain that the
agency's ten-month delay was unreasonable. See Johnson v. Department of
Agriculture, EEOC Appeal No. 01962834 (Dec. 10, 1996) (Fourteen-month
delay in payment of compensatory damages unreasonable); Jenkins
v. Department of Agriculture, EEOC Appeal No. 01960794 (Dec. 10, 1996)
(300-day delay in compensatory damages payment unreasonable although
damage award must be calculated from complainant's submissions);
see also Siegalkoff v. United States Postal Service, EEOC Appeal
No. 01961227 (Nov. 13, 1996) req. for recons. den. EEOC Request
No. 05970251 (Aug. 6, 1998) (finding ten-month delay in overtime
payment unreasonable and remanding award because agency failed to
provide evidence of how it arrived at the overtime payment figure); but
see Malladi v. Department of Veterans Affairs, EEOC Appeal No. 01961100
(Dec. 17, 1996)(seven-month delay in payment of predetermined amount of
attorney fees not unreasonable).
Complainant requests payment of interest to remedy the agency's
unreasonable conduct. The Commission has held that where an agency fails
to act in �good faith,� interest may be assessed for delayed payments
even though interest was not contemplated within the settlement agreement.
See April v. Department of Agriculture, EEOC Appeal No. 01963775 (June 5,
1997); cf. Donald v. Department of the Army, EEOC Appeal No. 01973329
(Feb. 9, 1998) (finding that because back-pay was reimbursed within
a reasonable time, no interest was due). Further, the agency cannot
breach an agreement by unreasonable delay, and then attempt to use the
provisions of that agreement to shield it from an obligation to pay
interest. Accordingly, the agency must reimburse complainant for the
interest on the unreasonably withheld differential pay from December 8,
1997, until September 1, 1998.
CONCLUSION
Accordingly, the agency's decision is REVERSED, and the complaint is
REMANDED for the agency to reimburse complainant for accrued interest.
ORDER
Within thirty (30) calendar days of the date that this decision becomes
final, the agency shall issue appellant a check for interest on the
$710.12 differential pay for the period of December 8, 1997, through
September 1, 1998. A report of compliance must be submitted to the
Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
December 1, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
___________________________________ ____________________
Equal Employment Specialist date1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2Since complainant does not argue that she did not timely receive the
out-of-pocket and fee payments, the Commission assumes that they were
completed within a reasonable time although the record contains no
evidence to confirm these payments.