0120152216
10-23-2015
Ayanna B.,1 Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ayanna B.,1
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120152216
Agency No. ARCEFTW14JAN0233
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated March 26, 2015, finding that it was in compliance with the terms of an August 19, 2014 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On August 19, 2014, Complainant and the Agency entered into a settlement agreement to resolve a matte which had been pursued through the EEO complaint process. The August 19, 2014 settlement agreement provided, in pertinent part, that:
12. A. The Agency agrees to change Complainant's 2013 performance rating from a 3 to a 2, and pay Complainant the difference of the amount she received as an award and what she would have received if her rating would have been a 2 for her 2013 performance rating. The Agency agrees to process the necessary documents to make the rating change by September 29, 2014.2
By letter to the Agency dated February 18, 2015, Complainant alleged breach of provision 12.A. Specifically, Complainant alleged that the Agency "has not fulfilled its promise to '...pay the Complaint the difference of the amount she received as an award and what she would have received if her rating would have been a 2 for the performance rating.' All attempts to resolve the matter have been unsatisfactory and no written response has been provided."
In its March 26, 2015 final decision, the Agency found breach of provision 12.A. of the settlement agreement. The Agency stated that the EEO office was contacted and requested to provide information concerning Complainant's breach allegation. The Agency found the documentation provided by the EEO office showed that the Agency has not fully complied to date. Specifically, the Agency noted that the other employee who received a level 2 rating was granted a percentage of salary award of ".88%." while Complainant was granted a percentage of salary award of ".84%" for the level 3 rating that she was initially assigned. However, the Agency found that as a result of the instant agreement, Complainant's annual appraisal rating was raised to a level 2 and that it was reasonable to infer that her percentage of salary award should have been raised to ".88%," equivalent to that received by other employees with a level 2 rating.
The Agency determined that Agency management provided no justification for the difference in the ".88%" versus the ".84%" award granted to the two employees who now have the same level 2 rating. The Agency also noted that the only justification offered was for the difference in the award for the employee who received a level 1 appraisal rating. The Agency determined that based on the absence of any explanation of why Complainant's level 2 rating should not equal that of the other level 2 rated employees, it is reasonable to infer that the parties' intent was for Complainant to receive an equivalent award.
Furthermore, the Agency determined that the chart provided by the EEO office "identified the Complainant's salary at the relevant time as $65,850, to which ".88%" is added to achieve an award of $579.48...however, since the Complainant's former level 3 rating had already awarded her $550.00, the Complainant should have been granted an additional $29.48 ($579.48 - $550.00) as a result of the increase in her rating to a level 2. The Activity rounded the other level 2 rated employee's award up to the next highest whole number, i.e., awarded $1000.00 where the exact numeric award was $999.33; thus, it is reasonable to round the Complainant's award up from $579.48 to $580.00, resulting in an entitlement to an additional $30.00 award."
Finally, the Agency determined that because Agency management has not fully complied with provision 12.A. of the instant agreement, it would order Agency management to raise Complainant's percentage of salary share to equal the .88% awarded to the other level 2 rated employees and pay her the additional monetary award.
In response to Complainant's appeal, the Agency determined that Complainant's award of $30.00 was processed on March 30, 2015, and that it is now fully complied with provision 12.A. of the instant agreement. In support of its assertions, the Agency submitted a copy of an award approval print out indicating that Complainant was approved for an award of $30.00 on March 30, 2015.
The instant appeal followed.
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).
Upon review, we are unable to determine whether the Agency has currently complied with provision 12.A. of the August 19, 2014 settlement agreement. According to provision 12.A., the Agency was to change Complainant's 2013 performance rating from a 3 to a 2, and to pay Complainant the difference of the amount she received as an award and what she would have received if her rating would have been a 2 for her 2013 performance rating. We note that in her February 18, 2015 letter alleging breach of provision 12.A., Complainant expressed dissatisfaction with the fact that there was no written response concerning the calculation of her award. We also note that in response to Complainant's appeal, the Agency stated that Complainant's award of $30.00 was approved. However, we note that, to date, there is no evidence in the record indicating how the Agency calculated Complainant's award and, most significantly, that she is in actually receipt of the award payment. Therefore, we shall remand this matter to the Agency for evidence showing whether it has complied with the subject settlement agreement.
Accordingly, the Agency's finding that it is now in full compliance with provision 12.A is REVERSED and the matter is REMANDED to the Agency for a supplemental investigation in accordance with the ORDER herein.
ORDER
Within sixty (60) days from the date this decision becomes final, the Agency is ORDERED to take the following action:
1. The Agency shall supplement the record with affidavits and documentary evidence indicating detailed calculations of Complainant's award and actual receipt by Complainant of the award pay at issue.
2. The Agency shall issue a new final decision regarding whether it is in compliance with provision 12.A. of the August 19, 2014 settlement agreement.
A copy of the Agency's supplemental investigation and new final decision shall be provided to the Compliance Officer as referenced herein.
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), 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 (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 (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 Complainants 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
October 23, 2015
__________________
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 The settlement agreement also provides for the Agency to enroll Complainant into the SWDO Mentorship Program; and provide her a desk audit by the end of the second quarter of FY 2015 and provide her with a copy of the results of the audit. These provisions are not at issue in the instant case.
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