EEOC Appeal No. 0120143015
10-03-2016
Jenee W. v. Dep't of State
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jenee W.,1
Complainant,
v.
John Kerry,
Secretary,
Department of State,
Agency.
Appeal No. 0120143015
Agency No. DOSF00514
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated July 31, 2014, finding that it was in compliance with the terms of a February 3, 2014 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
During the period at issue, Complainant worked as a Procurement Analyst for the Agency in Washington, D.C. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process.
On February 3, 2014, Complainant and the Agency entered into a settlement agreement to resolve the matter. The February 3, 2014 settlement agreement provided, in pertinent part, that:
(9b) The Bureau of African Affairs (AF) will, within (60) calendar days of the execution of this Agreement, make [Complainant's] promotion in her present position as Procurement Analyst GS-13 Step 1 with a retroactive date of September 23, 2013; and
(9c) The Bureau of African Affairs Executive Office, Human Resources (AF/EX/HR) will, within (60) calendar days of the execution of this Agreement, issue a Form 1099 for the amount of twenty-three thousand, eight hundred eighty-nine dollars and sixty cents ($23,889.60) minus deductions such as both state and federal taxes to [Complainant].
In a series of emails to the Agency beginning on April 7, 2014, Complainant alleged breach, and requested that the Agency specifically implement the terms of the subject agreement. Complainant alleged that the Agency failed to pay her the $23,889.60 required by provision (9c) of the agreement.
In its July 31, 2014 final decision, the Agency concluded that it had substantially complied with the agreement at issue. This appeal followed.
ANALYSIS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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).
The Agency asserts that the $23,889.60 identified in provision (9c) resulted from "an error in calculation" by the Agency official engaged in the settlement effort. In brief, the Agency asserts that the lump sum payment identified in the agreement was meant to compensate Complainant for the retroactive promotion she received in provision (9b) of the agreement. This error occurred when the Agency official involved in the settlement, when calculating the backpay for the period of September 23, 2013 to December 22, 2013, simply included a GS-13 salary for that period, and failed to further offset the GS-12 salary Complainant already received for the same period. The Agency asserts that, when complying with the agreement, it made the offset, and issued Complainant a check for $3,13.20 (gross pay of $4,725,74 minus deductions) plus $25.58 in interest. The Agency argues that the intent of the parties - promoting Complainant from a GS-12 to a GS-13 retroactive to September 23, 2013, and providing her with appropriate backpay to reflect that retroactive promotion - was accomplished. Therefore, the Agency contends that it is in substantial compliance with the terms of the settlement agreement.
Complainant, on the other hand, contends that she would never have agreed to accept less than the $23,889.60 provided for in the agreement. Complainant indicates that any amount less than $23,889.60 would not be "fair compensation for discrimination, loss wages, and pain and suffering." Complainant states that she relied on the settlement to use as a down payment on the purchase of a house. Complainant also indicates that she reported the settlement amount of $23,889.60 as increased income in family court, which resulted in adjustments to the amount of parental support she received.
A review of the record persuades the Commission that the Agency breached the settlement agreement dated February 3, 2014. The terms of the agreement expressly provide that the Agency is to "issue a Form 1099 for the amount of twenty-three thousand, eight hundred eighty-nine dollars and sixty cents ($23,889.60) minus deductions such as both state and federal taxes..." The Agency argues that the calculation error in this matter is not a substantive breach. However, the record indicates that the Agency's failure to pay the lump sum provided in the agreement set in motion a series of consequences that placed Complainant in a worse financial position due to the Agency's error. Specifically, Complainant indicates that the settlement amount was used to calculate her child support, reducing the amount of support she received by $719.00. Complainant further indicates that she intended to use the money as a down payment on the purchase of a home which required a deposit of earnest money in the amount of $20,000. Due to the Agency's error, Complainant states that she had to seek other sources of means in order to continue with the purchase of her house for herself and her two children.
In finding that the Agency has an affirmative obligation to pay the sum identified in provision (9c), we reject its argument that the sum reflected a clerical error that was unintended. We expressly note that provisions (9b) and (9c) listed the purportedly incorrect amount by word, i.e. "twenty-three thousand, eight hundred eighty-nine dollars and sixty cents," and by number "$23,889.60." Moreover, and just as significant, it has not gone unnoticed by us that the subject agreement was signed by no less than five Agency officials including a party identified as an "HR Representative," three parties identified as either "Responding" or "Resolving" Officials, and by one "Director, Office of Civil Rights." If the $23,889,60 was so glaringly in error, we find it curious that five separate Agency signatories did not detect this error at the time of the subject agreement's execution.
In conclusion, we find that the Agency has not met its burden of showing that it complied with the February 3, 2014 settlement agreement between the parties. The record indicates that the Agency's mistaken in calculation was more than a simple clerical error. The Agency is obligated to comply with the calculations it provided and the lump sum payable to Complainant as provided in the settlement.
Accordingly, the Agency's finding of no breach is REVERSED and the matter is REMANDED to the Agency for further processing in accordance with this decision and the Order below.
ORDER
Within sixty (60) days from the date this decision becomes final, the Agency is ORDERED to pay Complainant the amount of $23,889.60 minus deductions such as state and federal taxes provided for in provision 9(c) of the settlement agreement dated February 2, 2014. The amount of $23,889.60 shall be offset by any amount already received by Complainant as payment under the terms of the instant settlement between the parties.
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/she 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 (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 3, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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