01A31118_r
08-07-2003
Ilene Blinick, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.
Ilene Blinick v. U.S. Department of Housing and Urban Development
01A31118
August 7, 2003
.
Ilene Blinick,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01A31118
Agency No. PI 95 0 1 R
DECISION
Complainant filed a timely appeal with this Commission concerning the
agency's compliance with the terms of the July 30, 2002 settlement
agreement into which the parties entered.
The settlement agreement provided, in pertinent part, that:
Fifth: The Department agrees to change the permanent promotion
for Complainant's GS-14 from November 26, 1995 to January 1, 1994.
The Department also agrees to provide to Complainant all applicable
backpay associated with the foregoing change, plus all applicable
additional benefits, including FERS Thrift Savings Plan, associated
with the foregoing change, and all applicable interest on the backpay,
which is to be calculated at the standard Federal government rates used
for computation of backpay. The Department agrees to effect the change
of Complainant's GS-14 permanent promotion and backpay as promptly as
possible, but no later than 60 days from the date that this Agreement
is fully executed by the Director of Equal Employment Opportunity.
The Department agrees to provide the Complainant and her representative
with written notice of the completion of the processing of the change
of Complainant's GS-14 permanent promotion and backpay actions, and with
all underlying data concerning calculation of the backpay.
By letter to the agency dated October 17, 2002, 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 pay her the agreed backpay and interest
by the 60-day deadline. Further, complainant alleged the agency had not
provided her with "written notice of the completion of the processing of
the change in Complainant's GS-14 permanent promotion and backpay actions,
and with all underlying data concerning calculation of the backpay."
The agency failed to respond to complainant's breach allegations prior
to the filing of the instant appeal.
On appeal, the agency submits documentation regarding the calculation of
complainant's backpay, and interest. The agency states that all of the
corrective actions have been accomplished, although admittedly outside of
the 60-day time limit. The agency claims that complainant was paid all
sums due under the settlement agreement in two separate installments,
the first of which the agency issued to complainant on December 9,
2002 and the second on January 15, 2003. The agency further claims that
documentation regarding the undertaken personnel actions and calculations
were previously sent to complainant. The agency concludes that while
fulfillment was delayed, due to the number of actions and manner in which
they needed to be accomplished, the agency has substantially complied
with the settlement agreement.
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).
In the instant case, we find that on appeal, the agency has submitted
documentary evidence sufficient to establish the agency's calculation
of the backpay and interest due complainant under the terms of the
settlement agreement. We do not find, however, any evidence indicating
that complainant received the calculated sums, (copy of pay stub,
check or notice of direct deposit, etc.) nor does the record contain
copies of any Notice of Personnel Action (SF-50) regarding the change
of complainant's promotion date to GS-14 as agreed. Specifically, we
find no pay records generated on or after January 15, 2003, documenting
payment to complainant of the second installment of the calculated backpay
and interest. Accordingly, the record is inadequate for the Commission
to substantiate the agency's fulfillment of its obligations under the
settlement agreement. The agency has failed to identify the evidence
in the record submitted which would show compliance with the agreement.
Accordingly, we will remand this matter to the agency for supplementation
of the record with evidence indicating payment to the complainant of the
required sums and evidence of the personnel action changing complainant's
date of promotion to GS-14 as agreed by the parties.
We therefore VACATE the agency's finding that no breach of the settlement
agreement occurred. We REMAND this matter to the agency for further
processing pursuant to the Order herein.
ORDER
The agency shall supplement the record with the following evidence
showing compliance with the July 30, 2002 settlement agreement:
Evidence that complainant has been paid, the date, and the amount
paid, in satisfaction of the backpay and interest due pursuant to the
settlement agreement.
Evidence (for instance, an SF-50, Notice of Personnel Action) showing
the corrected date of complainant's promotion to GS-14 as provided by
the settlement agreement.
Within 30 days of the date this decision becomes final, the agency
shall issue a regarding its compliance with the terms of the settlement
agreement. A copy of the agency's decision shall be sent to the
compliance officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (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 (R0900)
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 (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
August 7, 2003
__________________
Date