0120140923
05-09-2014
Complainant, v. Ray Mabus, Secretary, Department of the Navy, (Naval Postgraduate School), Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
(Naval Postgraduate School),
Agency.
Appeal No. 0120140923
Agency No. 07-62271-02361
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated December 3, 2013, finding that it was in compliance with the terms of a December 6, 2007 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 December 6, 2007, Complainant and the Agency entered into a settlement agreement to resolve a matter that was pursued in the EEO complaint process. The settlement agreement provided, in pertinent part, that:
2(a). [Complainant] will be detailed until 12-31-2010 to a set of unclassified duties reporting to the University Librarian, Dudley Knox Library. This time period may be renewed based upon mutual agreement of the parties.
. . .
2(l). [Complainant] will receive a 10% annual retention pay while employed in these unclassified set of duties.
On December 10, 2010, the parties entered into an addendum to the settlement agreement. The addendum provided, in pertinent part, that the parties agreed to the following:
2(c). [Complainant] will receive a 15% annual retention pay for a three year period beginning 01/01/2011 and ending 12/31/2013.
The record reflects that on August 21, 2013, Complainant received a formal Notice of Termination of his retention incentive from the Navy Postgraduate School (NPS) Interim President. Complainant alleged that his incentive was a central part of his settlement agreement and addendum, which provided for a retention pay until December 31, 2013.
By letter to the Agency dated November 14, 2013, Complainant, through his union representative, alleged breach of provision 2(c) of the addendum to the original settlement agreement and requested that the Agency make him whole for the remaining of money due to him by paying a lump sum. Specifically, Complainant stated, "at this point, NFFE [National Federation of Federal Employees] Local 1690 will not contest the termination of the retention incentive, but we will reserve the right to do so in the future should we not come to an acceptable agreement in terms of compensation due to the employee. What the parties agreed to what a 'method of payment' that would be equal to the amount due to the employee as a result of the breach/agency action...we are requesting a lump sum payment of $4444.82 paid to [Complainant] within 30 calendar days of receiving this notice ([Complainant] is due 7 remaining pay periods of $608.88 ($4262.16) along with 3 additional days of pay pro-rated at $182.66)."
In its December 3, 2013 final decision, the Agency found no breach of provision 2(c). Specifically, the Agency acknowledged that it did not continue Complainant's retention bonus through December 31, 2013. The Agency stated that its method of payment for Complainant's retention "may not have been the correct one." The Agency stated that in August 2013, the NPS was required to discontinue retention incentives that were not properly justified in accordance with 5 CFR Part 575 for all NPS personnel, including retention incentives provided pursuant to settlement agreements. Complainant's incentive under the addendum agreement was 15% of his salary including locality pay. The Agency stated that in the cessation of payments in September 2013 resulted in non-payment of 7 pay periods and three additional days of retention incentive for the remainder of 2013 unless a retention incentive was requested and substantiated by a supervisor. The Agency determined that Complainant "has nevertheless received payment of a retention incentive for five years and nine months during the performance of the settlement agreement that was not justified in accordance with the law. The payment received, through erroneous and unjustified in accordance with law, will not be recouped. The Agency will not re-open the settlement to add salary to compensate for the removal of an unjustified retention incentive."
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).
In the instant case, the record in this case contains insufficient evidence for us to determine whether a breach of the instant settlement agreement has occurred. The Agency's final decision finding no breach is predicated upon an assessment that Agency management was required to discontinue the incentives that were the subject of the instant agreement, because it was not appropriately justified in accordance with referenced federal regulations. However, the record contains no affidavits from any Agency employees indicating that: (a) although they had purportedly attempted to fulfill the Agency's obligations under the terms of the settlement agreement, they had subsequently been instructed by a valid authority to discontinue retention incentives payments, and (b) the express justification that was provided to cease such payments in advance of the scheduled expiration date form making such payments. Given this lack of evidence, we are unable to ascertain whether the Agency complied with the settlement agreement. Accordingly, this matter is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to take the following action:
The Agency shall supplement the record with evidence clearly showing that it has complied with provision 2(c) of the December 15, 2010 addendum settlement agreement. The supplementation of the record shall include any documentation, such as affidavits from any responsible management officials, indicating whether the Agency complied with Complainant's 15% retention pay for a three-year period beginning January 1, 2011 through December 31, 2013. Any documentation reflecting the discontinuation of the retention incentive payments shall be accompanied by a reasoned, explicit elucidation of how such documentation reflects compliance with the subject settlement agreement supported by relevant documentary evidence. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall complete the supplementation of the record and issue a new decision concerning its compliance with the December 15, 2010 addendum settlement agreement.
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 (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 9, 2014
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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