0120103420
02-14-2011
George S. Lakner, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
George S. Lakner,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120103420
Agency No. 200P06052002100863
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated August 19, 2010, finding that it was in compliance with the terms of the January 22, 2010 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
Complainant was a Staff Psychiatrist at a California healthcare facility of the Agency. In resolution of an EEO complaint regarding his removal from employment, the Agency and Complainant entered into a settlement agreement dated January 22, 2010. The agreement provided, in pertinent part, that:
3. The Agency agrees to retroactively reinstate [Complainant] as if the termination never happened and to generate the necessary documents to indicate that [Complainant] retired on the effective date of the settlement agreement.
4. [Complainant] agrees to waive backpay that would be calculated under the Backpay Act, other than as provided for elsewhere in this agreement. . . .
6. The Agency will issue a lump sum payment to [Complainant] in the amount of $328,000.00 within 60 days of the effective date of this settlement agreement. This sum represents reimbursement for pecuniary and non-pecuniary damages. Complainant is responsible for any applicable taxes. The Agency expresses no opinion on Complainant's tax liability.
7. The Agency will effectuate appropriate documentation to reflect that [Complainant] had uninterrupted service through the effective date of the settlement agreement, whereupon he has agreed to retire. The Agency will make applicable employee and employer contributions to the retirement system, including FERS and social security and take any other necessary steps to effectuate this agreement. The Agency will take these actions within 60 days of the effective date of this settlement agreement.
8. [Complainant] will accrue annual leave through the effective date of the settlement agreement. The accrued annual leave will be paid by lump sum at the time of his retirement. . . .
12. The Agency will execute an agreed-upon letter of reference within 60 days of the effective date of this settlement agreement.
By letter to the Agency dated May 17, 2010, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to implement terms provided in paragraphs (6)1, (7), (8), and (12).
On August 18, 2010, Complainant filed an appeal with this Commission, stating that the Agency failed to render a determination on his breach allegation. A day later, on August 19, 2010, the Agency's Office of Resolution Management/Policy and Compliance (ORM) issued a decision finding that the Agency breached paragraphs (7), (8) and (12) of the settlement agreement. As to provision (7), ORM referred to the contention of a Nationwide Payroll Supervisor that the Agency could not comply with (7) because the terms violate Office of Personnel Management (OPM) Regulation 5 C.F.R. � 550.801 as to backpay and retirement benefits. ORM stated that the Agency failed to show a violation and ordered specific performance of the above-indicated provisions and documentation of said performance.
Complainant argued that the Agency's determination was untimely so it no longer had authority to render a decision, and that this Commission should incorporate the final agency decision by reference only. On October 15, 2010 and November 22, 2010, Complainant submitted additional briefs stating that the Agency still had not implemented paragraphs (7), (8) and (12), and requested that the Commission award attorney's fees for all enforcement efforts by Complainant.
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. 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).
In the instant matter, as to provision (7), the Agency agreed to create appropriate documentation indicating that Complainant "had uninterrupted service through the effective date of the settlement agreement [January 22, 2010]" and retired on January 22, 2010. Further, in the same paragraph, the Agency agreed to "make applicable employee and employer contributions to the retirement system, including FERS and social security and take any other necessary steps to effectuate this agreement." Based on the agreement, in (7), the Agency agreed to make retirement contributions based on Complainant's uninterrupted service and end of duty date of January 22, 2010. The difficulty appears to arise because, earlier in the agreement, Complainant agreed to accept a lump sum payment in lieu of specific backpay. Hence, a payroll official has apparently indicated that retirement contributions cannot be made without a specific backpay provision. However, in its final decision, the Agency concedes that there is no proof that the contributions cannot be made in this circumstance, and conceded that the provision had been breached.
We agree that the Agency violated the January 22 agreement when it failed make the agreed-upon retirement contributions and fully implement the terms of (7). While it appears that a payroll official has contended that OPM regulations prevent said contributions, the Agency, through its ORM, has conceded that there is no objective evidence to support this contention. We agree with the Agency that the settlement agreement as a whole specifically provides for the necessary actions to support provision (7) where, in settlement of an EEO complaint, Complainant has been retroactively reinstated and given a lump sum payment in lieu of backpay. Accordingly, we find that the Agency has breached the terms of (7), and will order immediate compliance with that provision. As to (8) and (12), we also agree there is no indication in the record that the Agency complied with those provisions.
After a careful review of the record, we are persuaded that the Agency breached the January 22 agreement by the actions alleged and set forth above. Hence, we AFFIRM the Agency's finding of noncompliance and REMAND the matter to the Agency for specific implementation in accordance with this decision and the Order below. Additionally, we find that Complainant is entitled to attorney's fees for work performed at the appellate stage. EEO Management Directive 110, Chapter 11, VI(A)(3) (November 9, 1999).
ORDER
The agency is ORDERED to take the following action:
1. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall specifically implement the terms of the settlement agreement provided in paragraphs (7), (8), and (12).
2. The Agency shall calculate and pay attorney's fees and costs related to the instant appeal in accordance with the "Attorney's Fees" paragraph below.
3. The Agency is further directed to submit a report of compliance as provided for in the section below, entitled "Implementation of the Commission's Decision." The report shall include documentation verifying that the corrective action has been implemented.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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), 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
___February 14, 2011_____
Date
1 We note that Complainant subsequently indicated that the Agency remitted payment outlined in paragraph (6).
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0120103420
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103420