0120130691
05-22-2013
Carol A. Kirkland, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Carol A. Kirkland,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120130691
Agency No. 9X1M120404, 9X1M11046
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated October 30, 2012, 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
On July 23, 2012, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(2d) No later than 30 calendar days from the date that the Complainant provides the Civilian Personnel Office an itinerary pertaining to her demobilization, the Agency will submit paperwork to the proper authorities for a Foreign Allowances Application, Grant and Report, SF-1190, pertaining to Post Allowance, Separate Maintenance Allowance, Post Hardship Differential, and Imminent Danger Pay, which will include the submission of a copy of Special Order TE-0089 dated 10 November 2010. If the Complainant is not granted any amount of Separate Maintenance Allowance after a final determination is made, the Agency will pay the Complainant a lump sum of three thousand four hundred dollars ($3,400.00). . . Paperwork will be completed and forwarded by the Agency for said amount to the Defense Finance and Accounting Service (DFAS) to pay to the Complainant the lump sum of three thousand four hundred ($3,400.00) no later than 60 days from the date of a final determination of denial for the payment of Separate Maintenance Allowance.
(10) The parties agree that this written agreement represents the sum total of the promises made by each of the parties. Each of the undersigned parties is signing the agreement voluntarily having had the opportunity to read and raise questions about its meaning prior to signing.
The record shows that Complainant provided the Agency with the itinerary pertaining to her demobilization on July 25, 2012; and within 30 calendar days, the Agency submitted the paperwork (as specified in the Agreement) to DFAS. The record includes e-mail messages showing that on August 8, 2012, the Agency submitted the paperwork. In addition, while waiting for a determination, the Agency initiated payment of the Hardship Differential and Imminent Danger Pay. Complainant acknowledged receipt of the payments on September 28, 2012.
By letter to the Agency dated September 14, 2012, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to pay her the calculations for foreign allowances which she believed was due and failed to pay her the contingency lump sum.
No final determination had been made on the payment of the Separate Maintenance Allowance or Post Allowance.
In its October 30, 2012 FAD, the Agency concluded that it was in compliance with the terms of the settlement agreement. The Agency reasoned that the agreement did not require payment within 30 days from the time that Complainant submitted her itinerary. The Agency found that the Agency was required to submit paperwork to the proper authorities; and the Agency complied with the provision on August 8, 2012. The Agency provided copies of the paperwork that had been submitted.
This appeal followed.
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).
We find that the agreement at issue was knowingly entered and is valid.
In the instant case, Complainant argues that the Agency breached the agreement when it failed to timely pay her the full amount and contingency fee and when it relied on imposed new requirements on Complainant. In response, the Agency reasoned that it met all of the requirements, as stated in the agreement, when the Agency to submitted the paperwork to DFAS. The Agency also asserts that and no final determination has been made with regard to the Separate Maintenance Allowance and therefore the request for the contingency payment is premature.
We find that the Agency complied with the provisions of paragraph 2(d), which is the only paragraph at issue. The Agreement required the submission of the paperwork to the appropriate authorities. The paperwork was submitted. There is no evidence that the information was misdirected. We further find that there is no evidence that a final determination has been issued with regard to the Separate Maintenance Allowance or Post Allowance by DFAS. Accordingly, the Agency's refusal to pay the full amount prior to a determination is in conformance with the terms of the Agreement. We find the record supports the Agency's finding that it was in compliance with the terms of the agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision.
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 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 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 22, 2013
__________________
Date
2
0120130691
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013