01A13563_r
09-10-2002
Gracie E. Davis, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Threat Reduction Agency) Agency.
Gracie E. Davis v. Department of Defense
01A13563
September 10, 2002
.
Gracie E. Davis,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Threat Reduction Agency)
Agency.
Appeal No. 01A13563
Agency Nos. COL-98-DD-0602-E, et al.
Hearing No. 100-99-7351X
DECISION
Complainant timely appealed the agency's decision that denied her claim
that the settlement agreement entered into between the parties had
been breached.
In June 2000, the parties entered into a settlement agreement with regard
to several complaints that had been filed by complainant. The settlement
agreement provided, in pertinent part, that complainant agrees as follows:
[2] a. Work, in good faith, with Agency supervisors to finalize her
Position Description, cooperate with the Agency audit of her leave and
payroll records, and cooperate with the Agency processing of her OWCP and
disability retirement claims. The Complainant will accept the Agency's
audit of her leave and payroll records as final and binding.
Write her nomination for the Women in Science and Engineering (WISE)
Award and submit the award to the appropriate personnel for Agency
consideration. Complainant understands her submission of the WISE award
for Agency consideration does not constitute automatic Agency consent
to forward the WISE award for consideration.
The settlement agreement provided, in pertinent part, that the agency
agrees as follows:
[3] a. Pay Complainant, within 45 days of the date of this agreement,
a lump sum total of $45,000 for attorney's fees and costs. This lump
sum is not intended as earned income.
Upgrade the Complainant's Performance Appraisals for the periods of:
1 July 1996 -30 June 1997; 1 July 1997 - 30 June 1998; and 1 July 1998
- 30 June 1999 from Fully Successful to an overall rating of Exceeds
Fully Successful, to include upgrading certain (to be designated by
complainant) job elements to Exceeds Fully Successful for each of the
three above-mentioned periods of time. This will be done within 90 days
of the date of this agreement.
Agency agrees to restore, within 90 days of the date of this agreement,
150 hours of sick leave and 50 hours of annual leave to the Complainant.
Complainant's use of this sick and annual leave will be in compliance
with applicable Agency directives.
Agency supervisors will work, in good faith, with Complainant to develop
a Position Description.
Upon receiving Complainant's written nomination for the WISE Award,
the Agency will, in good faith, give this award the same consideration
it would any other nomination.
The Agency will conduct an audit of Complainant's leave and payroll
records from August 1, 1999 to the date of this agreement. The Agency
will request complainant's assistance as needed. The Agency will also
consider any written or electronic submissions from Complainant that
may assist in the Agency completing this audit. The Agency will make
the necessary corrections to Complainant's leave and payroll records
if errors are discovered during the audit process. Notwithstanding the
results of the audit process, the Agency will restore 34 hours of sick
leave to Complainant in addition to the hours specified in 3.c. above.
The maximum hours to be restored as a result of the audit will be 165
hours of annual leave, 80 hours of sick leave and $829.72 of lost pay.
The Agency will assist Complainant in the processing of her OWCP and
disability retirement claims.
By letter dated March 23, 2001, complainant informed the agency that it
had breached the settlement agreement. According to complainant, the
agency completed its audit of her leave and payroll records and informed
her that she should have received advanced sick leave. Complainant
stated that the agency only wants to pay her advanced sick leave,
which she claims is contrary to the settlement. Complainant stated
that she is owed nearly $10,000.00 by the agency and that she would
only receive a maximum of $6,000.00 based on the agency's calculations.
Complainant argued that the 150.5 hours in question were not all advanced
sick leave. According to complainant, the agency is also not assisting
her in applying for a disability retirement.
In an agency decision dated April 25, 2001, the agency determined that
it did not breach the settlement agreement. The agency stated that it
has completed all of its obligations under the settlement. According to
the agency, the Human Resource Services Center submitted complainant's
disability retirement package to the Office of Personnel Management
on April 19, 2001. The agency stated that the audit results are final
and binding. Thereafter, complainant filed the instant appeal.
In response, the agency asserts that it has fully complied with the
terms of the settlement agreement. The agency maintains that with
regard to the settlement provisions cited by complainant, no errors were
discovered during the audit of complainant's leave and payroll records.
The agency stated that it nevertheless granted 150.5 hours of advanced
sick leave to complainant. According to the agency, the 150.5 hours
represent time cards that complainant and her supervisor signed or failed
to sign without explanation showing advanced leave. The agency notes that
complainant did not file paperwork through the Personnel Office to gain
proper approval for advanced sick leave, and that the time cards were
subsequently changed to leave without pay or annual leave. The agency
states that it granted the 150.5 hours of advanced sick leave because it
assumed that complainant had a reasonable belief the advanced sick leave
had been approved because the time cards showed advanced sick leave.
According to the agency, upon updating complainant's leave and payroll
records with 150.5 hours of advanced sick leave, complainant received
$8,318.96 for time previously documented as leave without pay. The agency
notes that the settlement states that the complainant will accept the
agency's audit of her leave and payroll records as final and binding.
The agency further notes that it restored 34 hours of sick leave to
complainant pursuant to this provision of the settlement.
With respect to the settlement term that states the agency will assist
complainant in the processing of her OWCP and disability retirement
claims, the agency states that its personnel met with complainant at her
home on three occasions to attempt to complete the OWCP and disability
retirement paperwork. The agency maintains that it completed its actions
for the OWCP claims on March 12, 2001. According to the agency, on April
19, 2001, its Human Resources Center forwarded complainant's disability
retirement application to the Office of Personnel Management for final
adjudication. The agency states that it has completed every action it can
with respect to the OWCP claims and the disability retirement application.
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
The Commission has consistently held that settlement agreements are
contracts between the complainant and the agency, and 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, 381 (5th Cir. 1984).
With regard to the merits of complainant's allegation of breach, we find
that complainant has not established that a breach occurred. We observe
that complainant agreed in the settlement that she would accept the
agency's audit of her leave and payroll records as final and binding.
The agency determined that there were no errors in complainant's leave
and payroll records. The agency further determined that the granting
of 150.5 hours of advanced leave to complainant was fair and appropriate
in light of its assumption that complainant had a reasonable belief that
the advanced sick leave had previously been approved. We find no basis
to conclude that the agency's audit was done in bad faith. Therefore,
pursuant to the settlement agreement, complainant must accept the
agency's audit of her leave and payroll records as final and binding.
With regard to the agency's obligation to assist complainant in the
processing of her OWCP and disability retirement claims, we find that
complainant has failed to refute the agency's position that it was
actively involved in assisting complainant with both her OWCP and
disability retirement claims. The agency established that it was an
active participant in the preparation of the claims and in facilitating
the processing of the claims. We find that complainant failed to show
that the agency breached the settlement agreement.
The agency's decision finding that no breach of the settlement agreement
occurred is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 10, 2002
__________________
Date