01981782_r
06-07-1999
Jean Redmond, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Jean Redmond, )
Appellant, )
)
v. ) Appeal No. 01981782
) Agency No. 980175
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
On December 16, 1997, appellant filed this appeal with the Commission
alleging that the agency did not comply with the terms of the settlement
agreement dated August 19, 1991.
ISSUE PRESENTED
The issue on appeal is whether the agency breached the settlement
agreement.
BACKGROUND
Appellant filed two formal EEO complaints on February 21, 1990, and June
15, 1990, respectively. The complaints were subsequently resolved by
a settlement agreement entered into on August 19, 1991. The agreement
stated in relevant part:
Complainant accepts the two-year assignment with the Inter-American
Institute for Cooperation on Agriculture (IICA), as provided for in the
agreement between the [agency] and IICA on August 5, 1991.
Following completion of Complainant's two-year assignment with IICA
discussed in paragraph numbered [1] above, Complainant may accept
a two-year renewal of that assignment, if acceptable to IICA and the
Complainant. The renewal shall be executed promptly so as not to create
a break in the Complainant's service.
Effective December 1, 1991, Complainant will be placed on the rolls of the
Office of Advocacy and Enterprise (OAE), USDA. The Economics Management
Staff, Economics Research Service, National Agricultural Statistics
Service, and World Agricultural Outlook Board (Economic Agencies), USDA,
will reimburse OAE for the salary of Complainant at her current GM-14
salary level plus any increases, as a result of general pay increases,
merit increases, or performance bonuses, and any expenses associated with
her return from Costa Rica under the agreement discussed in paragraph
numbers [1 and 2] above. The reimbursement will not be extended beyond
October 1, 1995.
In an agreement dated August 23, 1991, between the agency and the
Inter-American Institute for Cooperation on Agriculture (IICA), IICA
agreed in relevant part to provide [appellant] with the necessary
official documents to assure her immunity from taxes by the government
of Costa Rica.
The record reveals that the agency sent appellant a letter dated January
6, 1997, with regard to the reimbursement of foreign taxes that had
been assessed on appellant. Appellant was informed that she would be
reimbursed a total of $18,083 to cover the following costs and taxes:
$1,900 in storage costs with regard to her automobile that was held
by Costa Rican Customs; $7,500 for the 50% nationalization tax on her
automobile; $2,700 for the 15% tax on household needs; $1,350 for the
15% tax on telephone bills; $1,950 for the 15% tax on restaurant meals;
$975 for the 15% tax on gasoline; $1,500 for the 15% tax on lodging;
and $208 for the 5% tax on airline tickets.
By letter dated April 16, 1997, appellant informed the agency that
she had not received a check for $18,083. In a letter dated June 18,
1997, IICA notified the agency that the agreement between them does
not state that IICA is responsible for the concession of privileges
or immunities. IICA stated that when appellant began working at the
Institute, it gave her a procedures manual with a description of the
requirements and dispositions regarding her benefits. According to IICA,
appellant was familiar with the required process and she did not follow
the process in a number of instances. IICA stated that a number of the
items included in appellant's tax exemption request exceed six months
and cannot be processed. IICA claimed with regard to appellant's new
automobile, that it remained in Customs storage for a long period of
time because appellant purchased it in the United States and imported it
to Costa Rica before she had nationalized her older vehicle. Further,
IICA stated that appellant purchased personal effects without taking into
consideration the official requirements for tax exemption. IICA asserted
that it attempted to cooperate with and assist appellant whenever she
requested such support.
By letter dated July 15, 1997, the agency notified appellant that
the $9,400 in costs incurred by bringing a second car into Costa
Rica was unavoidable. The agency stated that a second automobile is
illegal in Costa Rica until the two-year exemption on the first car has
expired and the car is nationalized, or the car is sold. The agency
stated that even then, the second automobile is not exempt from taxes.
The agency indicated that it had been informed by IICA that IICA provided
appellant with direction and instruction on how to avoid the imposition
of taxes and that appellant completed the paperwork to avoid some taxes.
According to the agency, IICA claimed that any tax liability incurred by
appellant was the result of her failure to follow the outlined procedures.
The agency further stated with regard to a tax exemption card, that
the American Embassy issues such cards to State Department personnel,
but not to federal workers at large. Finally, the agency requested that
appellant submit all relevant receipts.
By letter dated July 30, 1997, appellant informed the agency that
both of her automobiles were in Costa Rica for the two required years.
Appellant stated that IICA allowed her car to stay in storage for more
than one year before it sought to redeem it from Costa Rican Customs.
According to appellant, the agency did not request the tax exemption
card through the American Embassy because it mistakenly presumed that
IICA would provide her with the card. Appellant contended that all
other agency employees working in Costa Rica, whether stationed at the
American Embassy or not, have the tax exemption card.
The record reveals that in letters to the agency dated September 4,
1997, and November 12, 1997, appellant stated that one term of the
1991 agreements was that she would be immune from any taxes imposed by
Costa Rica. Appellant maintains that the agency agreed to reimburse
appellant for any tax liability incurred by her. Appellant argued that
the failure to issue her payment is a breach of the settlement agreement
entered into in August 1991.
On December 16, 1997, appellant filed the instant appeal with the
Commission. Appellant notes that more than 35 days have elapsed since
the agency was notified of its alleged breach. Appellant requests that
the agency be ordered to pay the amount agreed upon on January 6, 1997,
plus accrued interest and attorney's fees and costs.
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final decision, 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.
EEOC Regulation 29 C.F.R. �1614.504(b) provides that the agency shall
resolve the matter and respond to the complainant, in writing. If the
agency has not responded to the complainant, in writing, or if the
complainant is not satisfied with the agency's attempt to resolve the
matter, the complainant may appeal to the Commission for a determination
as to whether the agency has complied with the terms of the settlement
agreement or final decision. The complainant may file such an appeal
35 days after he or she has served the agency with the allegations of
noncompliance, but must file an appeal within 30 days of his or her
receipt of an agency's determination.
Settlement agreements are contracts between appellant and the agency and
it is the intent of the parties as expressed in the contract, and not
some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In interpreting settlement agreements, the Commission
has applied the contract principle known as the "plain meaning rule"
which holds that where a writing is unambiguous on its face, its
meaning is determined from the four corners of the instrument without
resort to extrinsic evidence. Smith v. Defense Logistics Agency,
EEOC Appeal No. 01913570 (December 2, 1991). Moreover, other standard
contractual requirements such as the necessity of consideration, apply
in this context. Collins v. United States Postal Service, EEOC Request
No. 05900082 (April 26, 1990); Shuman v. Department of the Navy, EEOC
Request No. 05900744 (July 20, 1990); Roberts v. United States Postal
Service, EEOC Appeal No. 01842193 (May 9, 1985).
Appellant alleged that the agency breached the settlement agreement
by not reimbursing her for the tax liability that she sustained while
working for IICA in Costa Rica. Appellant claims that the agency agreed
in January 1997 to reimburse her $18,083, but that it now disputes the
amount owed. The settlement agreement provided that appellant would be
assigned to work for IICA. The agreement between the agency and IICA
stated in relevant part that IICA agreed to provide appellant with the
necessary official documents to assure her immunity from taxes imposed
by the government of Costa Rica.
Upon review of this matter, we find that a number of issues need to be
resolved before it can be determined what, if any, amount appellant
is entitled to receive as reimbursement. First, it is unclear based
on the language of the agreement between the agency and IICA whether
appellant is entitled to reimbursement at all. The specific language
of the agreement only states that IICA will provide appellant with the
necessary official documents to assure her immunity from taxes imposed
by the Costa Rican government. It does not state that appellant will be
reimbursed if taxes are imposed. The agreement also does not state that
appellant will be reimbursed if appellant fails to submit the official
documents or other documentation required by the Costa Rican government,
or if appellant incurs costs by committing an illegal act. The record
therefore needs to be supplemented with presentations from both parties
as to their respective interpretations of the agreement with regard to
these issues. The record also needs to be augmented by both parties
with specific evidence as to whether and when appellant was provided
with the necessary official documents, and whether and when appellant
followed the necessary procedures in attempting to secure immunity from
taxes imposed by the Costa Rican government. Further, assuming arguendo,
that appellant is entitled to reimbursement, we find based on there being
insufficient information in the record that it can not be determined what
amount appellant is entitled to receive as reimbursement. The record
needs to be supplemented with copies of the receipts and canceled checks
for the various taxes, fees, and other costs for which appellant seeks
reimbursement. Consequently, we are unable to determine the exact amount,
if any, that appellant is entitled to receive. Accordingly, this matter
is REMANDED to the agency for a supplementation of the record and the
issuance of a final decision regarding the amount to be paid appellant
in accordance with the Order below.
ORDER
The agency is ORDERED to conduct a supplemental investigation to determine
whether it has breached the settlement agreement. The agency shall,
in rendering its determination, obtain information
from all relevant officials and appellant as part of the supplemental
investigation. The agency shall seek information as to the issues
detailed above, e.g., whether under the agreement between the agency and
IICA, appellant is entitled to reimbursement for taxes imposed by the
Costa Rican government; whether appellant was provided with the necessary
official documents, and whether appellant submitted these documents in an
attempt to secure immunity from taxes; and the amount of taxes, fees, and
costs for which appellant was assessed and now seeks reimbursement, with
supporting documentation. The agency shall issue a final decision within
ninety (90) calendar days of the date that this decision becomes final.
The agency's decision shall provide appellant with notice of her right
to appeal the decision to the Commission.
A copy of the agency's final decision must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
June 7, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations