01A01421_r
06-19-2002
Callie Williams, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Callie Williams v. Department of the Navy
01A01421
June 19, 2002
.
Callie Williams,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A01421
Agency No. 98-00187-039
DECISION
On November 29, 1999, complainant filed with the Commission a claim
that the settlement agreement entered into between the parties had
been breached.
The record reveals that on July 28, 1999, complainant and the agency
entered into a settlement agreement regarding an EEO complaint, Agency
No. 98-00187-039. The settlement provided, in pertinent part, that
in exchange for complainant voluntarily withdrawing his complaint,
the agency agreed as follows:
[2] a. Cancel the Complainant's reduction in force separation of June
5, 1998.
Provide the Complainant backpay for the period June 6, 1998 through August
14, 1999 with appropriate increases. Backpay computation will be reduced
by $21,371.00, the amount of severance pay received by the Complainant.
Provide the Complainant with the total amount of sick and annual leave
that would have been accrued for the period June 6, 1998 through August
14, 1999.
Credit Complainant with 79.50 hours of sick leave that the record shows
as his balance on June 6, 1998.
Place the Complainant in Position Description 3A526, Office Automation
Clerk, GS-0326-04, NAVFAC, Navy Public Works Center, Office of the
Executive Officer, Occupational Safety and Health Department, effective
August 15, 1999. Retained pay authorized at $15.13 per hour.
. . . .
Ensure Complainant will not incur any loss of use or lose annual leave
for the period of 36 months from the date of this agreement.
All funds resulting from this settlement agreement will be mailed to
[complainant's attorney]. All backpay issues are to be processed within
(90) days of this agreement.
The Agency will provide the Complainant the sum of five hundred dollars
($500) in resolution to the above mentioned complaint.
ATTORNEY FEES OR OTHER MONETARY CHARGES: The Agency will pay the amount
of five thousand dollars ($5,000) to [complainant's attorney] as full
and final payment to resolve attorney fees. The Complainant agrees that
the above mentioned backpay settlement is the final cash settlement for
any and all costs, including any damages, incurred by the Complainant.
By letter dated October 29, 1999, complainant informed the agency that
it had not complied with the settlement agreement. Complainant stated
that the agency failed to pay him the monies to which he is entitled.
Further, complainant claimed that the agency erroneously forwarded a
partial, incorrect payment directly to his account rather than sending
all of the settlement proceeds to his attorney within ninety days of
the date of the settlement agreement.
Complainant claims on appeal that the agency breached the settlement
agreement. According to complainant, his representative and the agency
representative had numerous discussions regarding the compliance matters
from October 14, 1999 through December 7, 1999. Complainant argues
that the agency has improperly failed to include overtime as part of
his backpay award. Complainant states that overtime must be included in
order for him to be rendered whole. Complainant claims that employees
who remained in similar positions as the one he held received overtime
payment during his separation period. Additionally, complainant
claims that he is entitled to reimbursement for the agency's portion
of his health insurance premiums that he paid during his separation.
Complainant argues that this amount should be included in the calculation
of backpay. Complainant also claims that he is entitled to recover
the difference in his prescription costs as a result of the agency's
lag time in processing his insurance conversion. With regard to the
lump-sum payment that he received as an equivalent for the annual leave
that he possessed at the time of separation, complainant maintains that
the benefit of retaining the money in lieu of additional hours of leave
played a role in his decision to enter into the settlement agreement.
Complainant claims that the agency has not shown any law that would be
violated by allowing him to retain the lump sum payment, but rather the
agency is relying on its policies instead. Complainant also claims that
he is suffering double taxation due to the agency's backpay calculations.
According to complainant, the agency's method of computation requires
him to incur taxes on funds upon which he previously paid taxes.
Complainant states that his severance payments were not deducted prior
to the tax calculations and that this has created a situation where the
severance payments are being taxed twice, once through the end of year
tax return for 1998 and in the calculation. Complainant argues that the
agency therefore is not placing him in the same position that he would
have been in but for the separation. Complainant states that the agency
is placing him in a position where he must actively pursue a separate
process to be placed in an equitable position and he will suffer the
loss of funds for a time while the Internal Revenue Service processes his
credit request. Complainant further claims that the agency has failed to
comply with the settlement provision requiring that all funds would be
sent to his attorney. Additionally, complainant argues that the agency
has failed to comply with the settlement by not paying him the monetary
awards which were paid by the agency for acceptable performance during
1998 and 1999. Complainant states that he previously received monetary
awards based on acceptable performance. Finally, complainant requests
attorney fees and reimbursement for the additional costs that he has
incurred in obtaining compliance with the settlement.
In response, the agency asserts that it must comply with 5 USC �5551(a),
wherein a lump sum payment for annual leave is authorized only upon
separation from the agency. The agency states that the hours of leave
given to an employee in a lump sum payment must be recovered when the
employee is returned to work. The agency argues that crediting the leave
and paying the lump sum would place complainant in a dual pay status.
With respect to complainant's claim that the agency did not pay its
portion of his health insurance premiums, the agency asserts that it paid
its share. The agency further states that payment of health insurance
premiums is not a part of the settlement agreement. As for complainant's
request for overtime backpay, the agency maintains that complainant is
not entitled to this form of backpay because no overtime was worked by
any similarly situated employee. The agency notes that the one other
similarly situated WG-2854-08 Electrical Equipment Worker was separated at
the same time as complainant. With regard to complainant's overpayment of
taxes, the agency states that since the overpayment was in relation to a
1998 tax return, complainant will need to file a request with the Internal
Revenue Service for a refund of the overpayment. The agency states that
it paid complainant the proper backpay amount as documented on his leave
and earnings statement for the pay period ending October 9, 1999.
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
The Commission has consistently held that settlement agreements are
contracts between the complainant and the agency, and 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, 381 (5th Cir. 1984).
We observe that in the instant settlement agreement the agency agreed
to provide complainant with backpay for the period of June 6, 1998
through August 14, 1999, with appropriate increases. It was agreed
that backpay computation would be reduced by $21,371.00, the amount of
severance pay received by complainant. With regard to complainant's
claim that overtime pay should have been included in his backpay award,
we note that the agency states that there were no similarly situated
individuals in complainant's former position, and that therefore no
overtime was worked. We find that complainant has not established that
there were similarly situated individuals in his former position during
the period of June 6, 1998 through August 14, 1999, and that therefore
there is no basis to conclude that overtime pay should have been included
in complainant's backpay award. As for the claim made that the agency
improperly mailed funds to complainant rather than his attorney, we
find that although this action was contrary to the settlement, there has
been no sufficient showing that this error caused harm to complainant.
The Commission finds that the mailing of funds to complainant did not
constitute a substantial breach of the settlement agreement.
With respect to the matter of the lump-sum payment that complainant
received as an equivalent for his annual leave, we note that such
a lump-sum payment is apparently authorized under 5 U.S.C. �5551(a)
only upon separation. The agency's policies require that annual leave
be restored upon an individual's reinstatement. Most importantly and
controlling in the instant matter, we find that allowing complainant to
retain both his annual leave and the lump-sum payment would improperly
provide complainant with a double payment which was not intended under
the settlement agreement. We find therefore that the agency has not
breached the settlement by requiring that complainant return the lump-sum
payment that he received as an equivalent for his annual leave.
With regard to complainant's request for a monetary award based on
an acceptable job performance rating for the years 1998 and 1999, we
find that this issue was not addressed in the settlement agreement.
Complainant is therefore not entitled to a monetary award based on an
acceptable job performance rating.
As for complainant's claim that the agency's method of computing backpay
caused him to incur taxes on funds upon which he previously paid taxes,
we observe that the settlement agreement did not elaborate on how the
backpay was to be calculated except that the backpay was to be reduced
by the amount of severance pay received by complainant. It appears that
the agency performed its tax calculations prior to reducing the amount
of severance pay. We find that the agency's method of computing backpay
does not constitute a breach of the settlement. Complainant retains
the ability to seek a refund from the Internal Revenue Service for any
overpayment that he made.
With regard to the issue of payment of complainant's health insurance
premiums, we find that health insurance premiums are included in a
backpay award. The Commission has held that � an award of backpay should
compensate a prevailing complainant for loss of health insurance coverage
by either: (1) reimbursing him for health insurance premiums paid to
continue in an agency-sponsored insurance plan or to secure alternative
coverage; or (2) paying him for uninsured medical expenses incurred during
the relevant period up to the amount the agency would have contributed
to his health insurance premiums.� Humiston v. United States Postal
Serv., EEOC Petition No. 04980015 (Sept. 24, 1998) (citation omitted).
The agency asserts that it paid its share of complainant's health
insurance premiums during the relevant period along with a two percent
surcharge. However, the agency has not submitted any documentation to
support its position. Complainant claims that he paid the agency's share
of his health insurance premiums during the relevant period, but he has
not provided documentation to establish that he made these payments.
Given that the record is incomplete on this issue, we find that this
matter should be investigated by the agency in accordance with the Order
below. Complainant also claims that he incurred extra prescription drug
costs due to an alleged agency error in allowing his health insurance
to lapse. We find that the agency should determine whether it failed to
provide the appropriate paperwork in a timely fashion to complainant's
insurance company, and whether such inaction caused complainant to
incur increased prescription drug costs. On remand, the agency shall
redetermine whether it has complied with provision 2(b) (regarding the
health insurance premium portion of back pay) of the settlement agreement.
Apart from the health insurance premium portion of back pay at issue in
provision 2(b) of the settlement agreement, we find that complainant
has failed to show that the agency has breached any other portion of
the settlement agreement.
The agency's decision finding no breach of provision 2(b) of the
settlement agreement is VACATED and we REMAND the matter to the agency
for further processing pursuant to the Order below. The agency's
decision finding no breach of the remainder of the settlement agreement
is AFFIRMED.
ORDER
The agency shall supplement the record by determining whether it paid its
share of health insurance premiums for complainant's health insurance
during the period that of June 6, 1998 through August 14, 1999, and
whether it was responsible for a lapse in complainant's health insurance
coverage. The agency shall request that complainant provide the agency
with any records that he has that shows that he paid the agency's share
of his health insurance premiums during this period, that the agency
did not pay such premiums, that the agency allowed his health insurance
to lapse, and that as a result of such lapse, he incurred additional
expenses for medical prescriptions. Upon supplementation of the record,
the agency shall issue a new decision stating whether it failed to pay
its share of health insurance premiums and whether it was responsible
for a lapse in complainant's health insurance coverage that caused him
to incur increased prescription costs. Within 30 days of the date this
decision becomes final, the agency shall issue a new decision determining
whether it breached provision 2(b) of the settlement agreement regarding
the health insurance premium portion of the back pay due under the
settlement agreement.
A copy of the agency's new decision must be sent to the Compliance
Officer as referenced herein.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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
June 19, 2002
__________________
Date