0120122124
08-15-2012
Francisco S. Valdez, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Logistics Agency), Agency.
Francisco S. Valdez,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 0120122124
Agency Nos. DLAB-10-0093
DLAB-11-0123
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated March 7, 2012, finding that it was in compliance with the terms of a July 29, 2011 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 July 29, 2011, Complainant and the Agency entered into a settlement agreement to resolve matters which Complainant had pursued in the EEO complaint process. The settlement agreement provided, in pertinent part, that:
1. [Complainant] agrees to report for duty as the GS-11 04-13, Senior Property Disposal Specialist (CPC), effective July 17, 2011 (Position Description Number H1 U6656).
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3. The Agency shall expunge by Monday, January 23, 2012, all records of a 14-day suspension served by [Complainant] in June 2010, should there be no further incidents of misconduct by [Complainant] from the date of this settlement through January 23, 2012. If there have no further incidents to misconduct by [Complainant], the Agency shall prepare an SF 52, Request for Personnel Action, rescinding the 14-day suspension. In doing so, it is the intention of the parties that DLA Human Resources will prepare an SF 50, Notice of Personnel Action, rescinding the 14-day suspension, and directing DFAS to reimburse [Complainant] for the 14-day period (10 work days).
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5. The Agency shall reimburse [Complainant] for his legal costs in the amount of $6,500.00 within a reasonable period of time, not to exceed 120 days from [Complainant's] signature on this agreement. The parties agree that [Director, DLA Disposition Services] will forward the required documentation to DLA Disposition Services J-8 to initiate payment, upon receipt of [Complainant's] signature on this agreement.1
By letter to the Agency dated January 30, 2012, Complainant alleged breach of provisions 3 and 5. Complainant requested that the two underlying complaints that were resolved pursuant to the subject agreement be reinstated from the point processing ceased. Specifically, Complainant alleged that the Agency breached the agreement by failing to pay him $6.500 in legal feels "within a reasonable period of time, not to exceed 120 days of signing of the agreement and the expunging of my records by Monday, January 23, 2012."
In its March 7, 2012 final decision, the Agency determined that it had cured any breach of provisions 3 and 5 of the settlement agreement. Regarding provision 3, the Agency noted that by email to Complainant dated February 2, 2012, the Director of DLA Disposition Services (D1) stated that on March 23, 2012, the Human Resources expunged all records from Complainant's file concerning the 14-day suspension that Complainant had served in June 2010, and that Complainant would receive a reimbursement in an upcoming pay period. The Agency further noted that by letter dated February 8, 2010 to D1, Complainant indicated there was no evidence in his electronic Official Personnel Folder (eOPF) indicating that all records concerning his 14-day suspension were expunged. The Agency noted that by memorandum dated February 22, 2012 and an-email dated February 27, 2012, a Human Resources Specialist confirmed that she personally reviewed Complainant's eOPF and noted that all records concerning Complainant's 14-day suspension were expunged on January 23, 2012.
The Agency stated that on January 23, 2012, Agency management requested the Defense Finance and Accounting Service (DFAS) to reimburse Complainant for the 14-day suspension. The Agency stated that while DFAS is responsible for payment services to the Agency, Agency management is not responsible for determining the actual date payments are made. The Agency noted that by email to D1 dated February 15, 2012, Complainant acknowledged a retroactive payment in the amount of $3,760.00.
Regarding provision 5, the Agency noted that on December 23, 2011, DFAS disbursed a check in the amount of $6,500 to Complainant's last known address of record. The record reflects that Complainant moved his residence from Melbourne, Florida to Jacksonville, Florida following the signing of the subject agreement. The record further reflects that Complainant did not provide the updated mailing address to the Agency. However, once Complainant notified the Agency that he had not received the payment pursuant to the agreement, the Agency worked with him to update his address and have him cooperate in getting the initial check cancelled and the new check issued to his new mailing address. The Agency stated that on January 27, 2012, DFAS sent another check to Complainant.
Further, the Agency noted that by emails to EEO staff members, dated February 2 and 7, 2012, Complainant acknowledged receiving the check in the amount of $6,500. However, the name on the check was written to "Frank" instead of his legal first name. The Agency noted that when Complainant was asked if he could still cash the check, Complainant responded "don't know...the amount of the check is large enough to trigger an alert that will cause me to provide official identification...I have decided to hold the check until other actions are completed."
The instant appeal followed, challenging the Agency's determination that it complied with provision 3 by expunging the record concerning the suspension on January 23, 2012, and cured provision 5 of the agreement by reimbursing another check to his new mailing address.
On appeal, however, Complainant now argues that the Agency also breached provision 1 because he was provided "only 13 days to report to his new official duty station." Complainant further argue that the Agency's "short notice of Permanent Change of Duty caused Complainant severe financial hardship and management's action was strictly retaliatory and harassment."
In response, the Agency argues that it complied with provision 1 of the agreement. Specifically, the Agency argues that Complainant's dissatisfaction with the terms of provision 1 that he agreed to was not a basis for a breach claim.
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).
The Commission finds that the Agency complied with the terms of provision 1. Specifically, we note that pursuant to provision 1, Complainant agreed to report for duty as a Senior Property Disposal Specialist, effective July 17, 2011. Complainant asserts, however, that the fact he suffered financial hardship as a result of the short notice of his new official duty station, was a violation of provision 1. However, the settlement agreement does not specify that Complainant would be entitled to financial hardship as a result of the short notice to report to his new official duty station. If Complainant wanted the Agency to make any guarantees, such as providing him financial hardship as a result of the short notice to report to his new official duty station, he was free to negotiate with the Agency to include these provisions into the settlement agreement. See Jenkins-Nye v. General Services Administration, EEOC Appeal No. 01851903 (March 4, 1987).
The Commission finds that the Agency complied with provision 3. Provision 3 provides for an affirmative Agency obligation to expunge all records concerning Complainant's 14-day suspension from his official personnel file on January 23, 2012 if there are no further incidents of misconduct, and to direct DFAS to reimburse Complainant for the 14-day period. The record contains a copy of the HR Specialist's memorandum for record dated February 22, 2012. Therein, the HR Specialist stated "this is to verify that [Complainant's] official personnel folder was expunged of a suspension dated 6/13/2010 through 6/26/2010. I have personally reviewed the official personnel folder and can confirm that the record was expunged." The record also contains a copy of the HR Specialist's email dated February 27, 2010 to the Equal Employment Specialist. Therein, the HR Specialist stated that the record concerning Complainant's 14-day suspension "was expunged 1/23/2012."
Regarding provision 5, we determine that, to the extent the Agency breached the instant provision by not reimbursing a check in the amount of $6,500 to Complainant for his legal costs within 120 days following the signing of the agreement, any such breach has been cured. The record reflects that Complainant acknowledged not receiving the check because the address in the Agency's Enterprise Business System (EBS) was different from his new mailing address. We note that the Agency made every effort to ensure that Complainant receive a check to his new mailing address. Provision 5 provided a specific time frame for the Agency to reimburse a check to Complainant within 120 days following the signing of the agreement. The Agency did reimburse a check to Complainant to his old mailing address. The record reflects that the Agency worked with Complainant to ensure that he updated his "myPay" and the EBS with his new mailing address so he could be reimbursed for his legal fees. The Commission has held that failure to satisfy a time frame specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, especially when all required actions were subsequently completed. See Lazarte v. Department of the Interior, EEOC Appeal No. 01954274 (April 25, 1996). Based on the foregoing, to the extent the Agency was in breach of its obligation to reimburse a check to Complainant within a reasonable amount of time but Complainant failed to notify the Agency of his new mailing address, we find that such breach has now been cured.
Accordingly, we AFFIRM the Agency's final decision finding no breach of provisions 1, 3, and 5 of the July 29, 2011 settlement agreement.
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), 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
August 15, 2012
__________________
Date
1 The settlement agreement also provides for the Agency to issue Complainant a Green Belt certification for his work on the San Antonio Project; four hours of paid administrative leave for completion of the VPP Passport assignment; and an on-the-spot award within 120 days from the date of the signing of the agreement. These matters are not at issue in the instant case.
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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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