0120150184
03-19-2015
Complainant, v. Ashton B. Carter, Secretary, DOD Department of the Navy, Agency.
Complainant,
v.
Ashton B. Carter,
Secretary,
DOD Department of the Navy,
Agency.
Appeal No. 0120150184
Agency No. 12-67004-01626
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated December 4, 2014, 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
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Management Specialist at the Agency's Marine Corps Logistics Command, Maintenance Management Center facility in Albany, Georgia.
On March 25, 2014, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part that the Agency agrees to:
(1a) Reinstate Complainant effective August 6, 2010. Pay Complainant back pay, leave, if any, and interest from August 6, 2010 (date of termination) to August 31, 2010 (which is date Complainant would have been eligible for within grade increase) at his pay rate at time of termination (GS-12, Step 2);
(1b) Effect paperwork to reflect and pay Complainant a within-grade increase, leave, if any, and interest to GS-12, Step 3 from September 1, 2010 to June 18, 2011 (which is the date Complainant took a job at Redstone Arsenal);
(1c) Pay Complainant the difference in pay for the period of June 19, 2011 through January 31, 2014 between the amounts Complainant earned from his position at Redstone Arsenal and the pay Complainant would have received had he continued to work for the Agency, plus interest;
(1e) Place in Complainant's Official Personnel File and Complainant's Supervisor's Files "Acceptable" performance appraisals for FY 2010 annual appraisal and June 2011 closeout appraisal;
(1f) Place in Complainant's OPF a SF-50 reflecting a voluntary resignation...beginning June 18, 2011;
(12) This written Agreement contains all of the agreements between Complainant and the Agency, and is intended to be the entire compromise settlement and is the final and sole agreement between Complainant and the Agency.
On April 30, 2014, the Agency issued a check in the amount of $87,892.55 which reflected the difference in pay from June 19, 2011 to January 31, 2014, plus interest. The record shows that the Agency also paid Complainant a lump sum of $48,000.00 in compensatory damages.
The Agency offered to fully reinstate Complainant into the Agency from August 6, 2010 through January 31, 2014, with back pay, leave, step increases and interest. Agency Exhibit 7. Complainant did not accept the Offer of Resolution.
By letters to the Agency dated July 23, 2014 and September 30, 2014, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency implement its terms. Specifically, Complainant alleged that the Agency failed to: 1) pay Complainant back pay, 2) make contributions to his TSP account, 3) place his Performance Appraisal in his electronic personnel file, and 4) process his payment for the dates June 19, 2011 through January 31, 2014 as DFAS Civilian Pay. In addition, Complainant asserts that he was not supposed to be paid in a lump sum, because the Agreement includes the phrase "as if he were still employed" means benefits and pay.
In his July 23, 2014 notice of breach, Complainant also referenced an amended settlement agreement dated June 14, 2014. Our records do not show any signed amended settlement agreement.
The record before us does not show that the Agency issued a final determination of his breach claim. Complainant filed an appeal with the Commission, after providing the Agency with notice of his breach claim. We will treat the Agency's response to the appeal as the Agency's Final Decision.
In its December 4, 2014 response, the Agency concluded that the Agency determined that the only agreement at issue was the March 25, 2014 agreement. Next, the Agency found that Complainant declined reinstatement and otherwise had been paid all of the amounts due under the Agreement. The Agency found that it complied with the express wording of the March 25, 2014 agreement.
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 was knowingly entered and is binding on both parties.
In the instant case, Complainant asserts that the Agency's lump sum payment was inconsistent with the intent of the Agreement and that he was entitled to full back pay beyond June of 2011, when he resigned. .Complainant concedes that "this is a matter of contract interpretation." He argues that, because the Agreement included the phrase "had he continued to work for the agency", therefore, the Agency was under a legal obligation to pay Complainant back pay, even though Complainant declined reinstatement. By its terms, the Agreement specified a voluntary resignation beginning June 18, 2011.
In response, the Agency offered documentation showing that it paid Complainant for the difference in pay for the period at issue, plus interest. The Agency argues that the terms of the Agreement are unambiguous. The Agreement did not specify TSP payments or preclude a lump sum payment.
The record shows that the Agency paid Complainant the difference in pay as required by paragraph 1(c). The Agreement did not preclude a payment in a lump sum and made no mention of TSP payments or any requirement that the payments be processed only as "DFAS Civilian Pay". For these reasons, we do not find that Complainant substantiated his claim that the Agency breached the Agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's finding of no breach.
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
March 19, 2015
__________________
Date
2
0120150184
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120150184