01980049
03-22-2000
Gayne M. Brenneman, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Gayne M. Brenneman v. Department of Veterans Affairs
01980049
March 22, 2000
Gayne M. Brenneman, )
Complainant, )
)
v. ) Appeal No. 01980049
) Agency No. 96-1530
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On August 14, 1997, complainant's representative notified the agency
that it breached an April 11, 1997 settlement agreement. When the
agency failed to respond to complainant's notice within thirty-five
days, complainant appealed her claim of breach to this Commission. The
Commission accepts the timely appeal for review. See 64 Fed. Reg. 37,644,
37,659, 37,660 (1999)(to be codified as EEOC Regulation 29 C.F.R. �
1614.402); 29 C.F.R. � 1614.504(b).<1>
The settlement agreement provided, in pertinent part, that:
(1) The complainant hereby voluntarily resigns from her employment at
the [agency] effective September 1, 1997. . . . The complainant will
be placed in a nonactive duty Leave Without Pay status from April 12,
1997, through September 1, 1997.
. . .
The agency agrees to pay to the complainant full backpay, including
accrued annual leave, but not including interest on the backpay amount,
less all deductions required by law, for the period covering January 28,
1996, through April 11, 1997. The backpay figure will include payment
in full of the complainant's Special Pay through September 1, 1996,
with prorated Special Pay for the period of September 2, 1996 through
April 11, 1997.
. . .
Nothing in this Agreement is intended to constitute an admission
of guilt, fault or wrongdoing by any of the individuals or parties
involved.
In complainant's August 14, 1997 letter alleging breach, she requested
that the agency specifically implement the terms of the agreement.
Complainant alleged that the agency failed to provide her with special
pay as contemplated in the settlement agreement.<2> Complainant argues
that she was only given 50% of the special pay to which she was entitled
for the period of September 2, 1996 through April 11, 1997.
Prior to alleging breach, it appears that complainant requested an
explanation of how her back-pay was calculated. On July 31, 1997,
the agency explained that complainant's special pay was computed in
accordance with the Special Pay Agreement (SPA) she signed with the
agency. The agency noted that complainant's SPA was controlled by an
internal regulation called MP-5. The agency found that complainant was
entitled to 100% of her special pay for the period of January 29, 1996
through August 31, 1996, because she completed the second year of the SPA.
The agency also explained that complainant failed to complete the third
year of the SPA, and thus was entitled to only 50% of the special pay
accrued between September 1, 1996 and April 11, 1997.
On appeal, complainant argues that payment of only 50% of special pay for
September 1, 1996, through April 11, 1997, was a breach of the agreement.
Complainant also contends that the agency breached the agreement by paying
only 50% special pay for her fifty-five days of accrued annual leave.
Complainant argues that since she did not resign until September 1, 1997,
complainant completed her third year of the SPA, and the penalty provision
should not apply to her back-pay calculation. Complainant argues that
the only reason the September 1, 1997 resignation date was included in
the agreement was to exempt complainant from the penalty provision of
the SPA that would apply if she failed to complete the third year under
the contract.
Alternatively, complainant contends that the settlement agreement,
providing for a pro-rata share of the year's special pay from September
1, 1996 through April 11, 1997, preempts the 50% penalty provision of
the SPA and MP-5. Complainant notes that the agreement only provides
for deductions required "by law," and argues that neither the SPA,
nor regulation MP-5, are "law." Further, complainant argues that the
penalty provision should not apply because she did not leave because
of misconduct, and she did not "voluntarily" resign. Complainant also
contends that the term "prorated Special Pay" in the settlement agreement
refers to a calculation of the full special pay amount divided by
the portion of the year she served in pay status under the agreement.
She argues that the prorated amount was never intended to apply the
penalty provisions to reduce her special pay by 50%. Complainant notes
that the agency refused to admit wrongdoing in the settlement agreement,
but contends that the settlement agreement, by its existence, should be
regarded as evidence that complainant was subjected to an "unwarranted
personnel action" prompting her resignation. Therefore, complainant
argues that she should receive full special pay.
Complainant attached a chart to her appeal outlining her pay and accrued
leave by pay period. The chart breaks down complainant's $61,000
per annum special pay by pay check (two week periods), and shows that
complainant had eighteen days of accrued annual leave on January 28,
1996, a total of thirty-six days by September 1, 1996, and fifty-five
days as of April 11, 1997.
Complainant also attached a copy of the SPA, dated September 1, 1994.
It provides, in relevant part:
[I]n the event complainant voluntarily or because of misconduct fail[s]
to complete any of the year(s) of service (measured from the anniversary
date of [this] agreement) which entitles [complainant] to Special Pay,
[complainant] will refund the specified percentage of Special Pay
[complainant has] received that year. . . . The specified percentages
are: (b) 75 percent of the special pay received in the second year if
the failure occurs during that year; (c) 50 percent of the special pay
received in the third year if the failure occurs during that year. . . .
[Complainant] acknowledge[s] that the regulations in MP-5 . . . are
incorporated into and made a part of the agreement and [complainant has]
read a copy of those regulations.
On October 10, 1997, the agency answered complainant's claim of breach.
The agency argued that it had not breached the agreement, because
complainant was only entitled to 50% of her Special Pay for September 1,
1996 through April 11, 1997. The agency noted that the SPA provided for
a penalty on pay given during the year (measured from the anniversary
date of the SPA), and that leave without pay did not count towards
earning credit to overcome the penalty provision, but only postponed
the obligation for a full year of service.
Regarding the purpose and significance of dates negotiated in the
settlement agreement, the agency notes that complainant was removed from
the agency for misconduct on January 28, 1996. Pursuant to the SPA,
complainant had to repay 75% of the special pay earned during her second
year, because complainant did not finish the year. Complainant filed
a formal complaint regarding her termination and bill for repayment,
which was settled in the April 12, 1997 agreement. The agency argues
that the settlement agreement gave complainant the complete second year
of special pay (up to August 31, 1996), in order to absolve complainant
of her over $15,000 debt for special pay repayment. Further, the agency
argues that complainant expressed the intent to have a September 1,
1997 resignation date so that she would not have a break-in-service.
The agency claims that her intent for complete payment of special pay
was not expressed to the agency, and was not authorized pursuant to the
SPA or MP-5. The agency failed to address the payment of special pay
with respect to accrued annual leave.
The record includes a copy of Regulation MP-5. Under this agency
regulation, "payment of special pay will not be authorized for periods of
leave without pay or absence without leave." MP-5, Part II, Ch. 3, Change
1, para 16(a). Further, the MP-5 provides that, "[p]hysicians . . . on
Leave Without Pay (LWOP) retain their employee status. However, time
spent in LWOP does not diminish the individual's service obligation under
a SPA. Physicians . . . who enter special pay agreements and subsequently
go into a LWOP status merely postpone their service obligation to [the
agency] under the terms of their agreement during the period of LWOP."
MP-5, Part II, Ch. 3, Change 1, para (10).
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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 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).
In the instant case, complainant's intent to receive full special
pay for the period from September 1, 1996 through April 11, 1997,
was not expressed in the contract. Consequently, in the absence
of particular language or of other evidence establishing that the
parties clearly intended to ascribe a particular meaning to the term
"special pay" other than its ordinarily accepted meaning, we construe
"special pay" in the context of this agreement to be consistent with the
definition/calculations specified in the SPA and corresponding MP-5.
See Johnson v. USPS, EEOC Request No. 05900663 (August 27, 1990).
Consequently, the Commission finds that the intent of the parties with
regard to "special pay" was to pay complainant what she would have
received had she worked until April 11, 1997 and then taken LWOP until
resigning on September 1, 1997. If complainant had worked on those dates,
absent the settlement agreement, she would be entitled to 100% of her
special pay from January 28, 1996 until August 31, 1996 (as outlined in
the settlement agreement), and 50% of her special pay for work performed
from September 1, 1996 through April 11, 1997. Therefore, the agency's
application of special pay procedures to disqualify complainant from
50% of her special pay for September 1, 1996 through April 11, 1997
was proper.
With respect to annual leave, complainant contends without contradiction
that she received only 50%of her special pay in repayment for all of her
annual leave. The amount of special pay given for accrued annual leave,
as with special pay given for regular back-pay, must take into account
the date on which the leave accrued. Therefore, the Commission finds that
complainant is entitled to 100% of her special pay for the thirty-six
days of annual leave accrued before September 1, 1996. The remaining
nineteen days of leave, however, were accrued in complainant's incomplete
third year of service, and complainant is only entitled to 50% of her
special pay for that leave.
CONCLUSION
Accordingly, the agency's finding of no breach with respect to the payment
of special pay for annual leave accrued prior to September 1, 1996 is
REVERSED, and the claim is REMANDED for specific implementation of the
April 12, 1997 settlement agreement. The agency's findings of no breach
with respect to back pay and annual leave accrued between September 1,
1996 and April 11, 1997 is AFFIRMED.
ORDER
The agency is ORDERED to provide complainant with 100% of her special
pay for leave accrued prior to September 1, 1996. Since the agency has
paid complainant 50% of her special pay for all annual leave, the agency
shall tender a check to complainant for the remaining 50% of her special
pay for all leave accrued prior to September 1, 1996 (thirty-six days).
With tender of the check, the agency also shall provide complainant an
explanation of the calculations made to determine the amount of payment
due. The check and explanation must be sent to complainant within
forty-five (45) calendar days of the date this decision becomes final.
Additionally, the agency must provide a copy of the explanation to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (T1199)
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:
March 22, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.
2"Special Pay" is a sum given in addition to employees' regular GS pay
scale in recognition of their special skills or specialties, in order
to hire individuals who otherwise would obtain much larger salaries in
the private sector. In the VA, special pay is governed by contracts
signed by the employee and agency officials. Complainant is a board
certified Cardiac Anesthesiologist, and signed a "Special Pay Agreement"
on September 1, 1994.