Charlene Coke, Complainant,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 5, 2007
0120060408 (E.E.O.C. Feb. 5, 2007)

0120060408

02-05-2007

Charlene Coke, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.


Charlene Coke,

Complainant,

v.

Dr. Francis J. Harvey,

Secretary,

Department of the Army,

Agency.

Appeal No. 01200604081

Agency No. ARREDSTON04NOV07790

DECISION

Complainant filed an appeal2 with this Commission from a final decision by

the agency dated November 15, 2005, regarding whether it was in compliance

with the terms of a July 20, 2005 settlement agreement. See 29 C.F.R. �

1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.

The July 20, 2005 settlement agreement provided, in pertinent part,

that the agency would:

6(2) Initiate the processing of a temporary promotion to a Supervisory

Intelligence Specialist, GS-0132-14 in the U.S. Army Aviation and

Missile Command, GS-2 Security Division, Redstone Arsenal, Alabama

for a period of 120 days (this is a retroactive action). Pay the

complainant the different between her permanent position GS-0132-13 and

her temporary promotion position of GS-0132-14 once necessary pay and

benefit adjustments have been made. This [is] to be completed within

2 weeks of the date of the last signature on this agreement.

6(3) Initiate payment to the Complainant [of] a lump sum of Fifteen

Thousand Dollars and No cents ($15,000.00). Complainant understands

that this entire amount will be reported to the Internal Revenue Service

(IRS) and that the question of tax liability, if any, as a result of

such payment is a matter to be resolved solely between complainant and

the IRS. This is to be completed within 2 week[s] of the date of the

last signature on this agreement.3

By letter to the agency dated October 6, 2005, complainant claimed that

the agency breached provisions 6(2) and 6(3).

In its November 15, 2005 final decision, the agency made the following

findings regarding provision 6(2). The agency determined that on August

6, 2005, the Defense Finance Accounting Service (DFAS) sent a letter to

complainant stating that there had been a $1544.16 overpayment to her

pay account for pay periods ending July 10, 2004 through July 9, 2005.

The agency further determined that the overpayment was a result of an

error by personnel at the Civilian Personnel Operation Center (CPOC).

Specifically, the agency stated that CPOC erred when it placed complainant

into a GS-13, step 8 position instead of a GS-13, step 7 position once

she completed her temporary GS-14 position identified in provision 6(2).

The agency stated that while it was regrettable that the error occurred,

but that it was not within its purview to address the overpayment issue.

The agency found no breach of this provision, and advised complainant

to contact the CPOC for any documentation DFAS may need from her.

Regarding provision 6(3), the record contains a copy of complainant's

Public Voucher for Purchases and Services Other than Personal, Voucher

No. 05-001, signed and dated September 21, 2005 by the Director of Intel

and Security. Therein, the remarks section contains the following entries

"EEO Settlement" in the amount of $15,000.00. However, there is no

evidence that the $15,000 was ever actually transmitted to complainant.

In light of the fact that the July 20, 2005 settlement agreement stated

that complainant was to receive the money within two weeks, the agency,

in its November 15, 2005 final decision, conceded that "it is not in full

compliance with the terms of the settlement agreement as of this date."

There is also evidence that on November 15, 2005, the agency EEO office

issued a memorandum to an agency Commander, indicating that the agency was

found not in compliance with the instant settlement agreement, and that

the identified agency activity was to "follow up with the Defense Finance

and Accounting Service with regard to the lump sum payment of "15,000.00."

In a statement submitted in response to complainant appeal, however,

the agency submitted email correspondence from the agency budget analyst

processing the payment request indicating that it had been received as

approved in her office on November 4, 2005, and the $15,000 should be

transmitted to complainant's bank account by November 14, 2005.

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. Department of Defense,

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. 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 O 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 (5th Cir. 1984).

Regarding provision 6(2), we find that the agency properly found no

breach. We also find that other than complainant's assertions, there is

no evidence in the record of bad faith by the agency. Specifically,

we find the language in provision 6(2) imposed upon the agency an

affirmative obligation to initiate the processing of complainant's

temporary promotion to a Supervisory Intelligence Specialist for a period

of 120 days; and pay complainant the different between her permanent

position GS-0132-13 and her temporary promotion position of GS-0132-14

once necessary pay and benefit adjustments have been made. A review

of the record reflects that the agency complied with provision 6(2).

With respect to complainant's claim that an error by the DFAS "was due to

not stipulating that the action and pay were part of an EEO settlement,"

we find that the overpayment of $1,544,16 does not constitute a breach

of provision 6(2) of the settlement agreement.

Regarding provision 6(3), we find the language provides that the agency

would pay complainant in the lump sum amount of $15,000.00 within two

weeks following the signing of the agreement. By its own admission, the

agency breached this provision, because as of November 15, 2005, nearly

four months after the execution of the settlement agreement, there was

no proof that complainant had actually received the $15,000 payment from

the agency, a payment she was supposed to have received in early August.

Therefore, we find that the agency did breach the settlement agreement,

at least with regard to the timely payment of the promised monies.

Moreover, the record does not contain any documentation reflecting

complainant's actual receipt of $15,000.00.

Accordingly, the agency's decision finding no breach of provision 6(2)

is AFFIRMED. The agency's decision finding that it was not in full

compliance with provision 6(3) is also AFFIRMED. Provision 6(3)

is REMANDED to the agency in accordance with the ORDER below.

ORDER

The agency is ORDERED to take the following action:

Within fifteen (15) days after the date that this decision becomes final,

the agency shall provide the EEOC Compliance Officer, as referenced

below, with evidence reflecting complainant's actual receipt of the

$15,000 lump sum that is the subject of this provision, such as a copy

of a check issued to complainant.

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

February 5, 2007

__________________

Date

1 Due to a new data system, this case has been re-designated with the

above referenced appeal number.

2 Complainant filed her appeal on October 12, 2005, prior to receiving

the agency's November 15, 2005 final decision on her allegation of

non-compliance with the settlement agreement. While complainant's

appeal may have originally been premature, the Commission exercises its

discretion to accept the appeal as perfected once the agency's final

decision was issued.

3 The settlement agreement also provides for the agency to initiate the

paperwork to reassign complainant from a GS-13 position in the AMCOM

G-2 Security Division to a GS-13 in the Aviation and Missile Research,

Development and Engineering Center, within 2 weeks following the execution

of the agreement. This provision is not at issue in the instant appeal.

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0120060408

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120060408

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