0120152218
10-29-2015
Jocelyn R.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jocelyn R.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120152218
Agency Nos. 9X1M11011 and 9X1M12041
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated April 2, 2015, finding that it was not fully in compliance with the terms of a November 18, 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
On November 18, 2014, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been pursued through the EEO complaint process. The settlement agreement provided, in pertinent part, that:
2.a. As soon as is practicable, but not later than 45 calendar days from the date of the last signature on this Agreement, the Agency will process a Request for Personnel Action (RPA), SF-52, and a Notice of Personnel Action (NPA), SF-50, reflecting Complainant's promotion to GS-0343-13/13 effective August 15, 2010. The Air Force Personnel Center (AFPC) will make all appropriate pay setting determinations, including but not limited to, the appropriate step for the promotion and any appropriate locality adjustment.
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2.d. As soon as is practicable, but not later than 45 calendar days from the date of the last signature on this Agreement, the Agency will take the necessary actions and forward such to the Defense Finance and Accounting Service (DFAS) to pay to Complainant a sum equal to the difference between the wages (including any appropriate step increases and locality pay) actually paid to Complainant by Agency and those Complainant would have earned had Agency selected Complainant for a promotion to GS-0343-13/13 at the same level as a Program Analyst position on August 15, 2010, including any bonus, wage increase, or time-off award and other benefits that would have resulted from Complainant's 2011 appraisal (which Agency shall also amend to reflect the same ratings for each of the appraisal factors Complainant received on her 2008 appraisal).
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2.k. As soon as is practicable, the Agency will offer Complainant placement in the first available Program Analyst, GS-0343-13/13, position (or substantially equivalent position), for which she is qualified, and, if Complainant accepts the offer, the Agency will place her in that position, retroactive to August 15, 2010. In the event Complainant accepts the placement offered by the Agency, Complainant will then be paid at the same level as a Program Analyst, GS-0343-13, Target 13, position for substantially equivalent position, including any appropriate step increases and locality pay. In the event Complainant declines a legitimate offer of placement, Agency may then, as of the date of the offer, process appropriate RPAs and RPNs to effectuate Complainant's voluntary downgrade to and begin paying her at her former level, GS-0343-12, Target 12, Step 10, including any appropriate step increases or general adjustments she would have received in the interim.2
By letter to the Agency dated February 20, 2015, Complainant alleged breach. Specifically, Complainant alleged that (1) the Agency failed to pay her retroactive salary, plus interest, from August 2010 at the grade of GS-0343-13/13, and (2) that the Agency failed to promote her to a comparable GS-0343-13/13 position. Specifically, Complainant stated while the Agency deposited $25,000 for non-pecuniary compensatory damages in her checking account, the Agency failed "to include retroactive pay plus interest from August 2010 at GS 343-13/13 level while to promote to a comparable GS 343-13/13 position failure to otherwise comply [to] agreement."
In its April 2, 2015 final decision, the Agency found no breach of provision 2.a. Specifically, the Agency acknowledged that Complainant's retroactive promotion to the grade of GS-0343-13, Step 6 was accomplished with an effective date of August 15, 2010; and that she received a within grade increase with an effective date of August 12, 2012, which placed her at the grade of GS-0343-13, Step 7. The Agency stated that to progress to a higher pay grade, Complainant would have to apply and be selected for another position.
The Agency, however, found breach of provisions 2.d. and 2.k. Regarding provision 2.d., the Agency noted that on December 12, 2014, Agency management submitted a ticket to DFAS requesting payment for Complainant. The Agency further noted that as of February 24, 2015, DFAS had not processed the ticket for payment.
Regarding provision 2.k., the Agency noted that Complainant was placed in the Priority Placement Program in order to effectuate a priority referral; and that once a position for which she is qualified becomes available, she would be placed in that position.
The instant appeal followed.
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. 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).
Upon review, we are unable to determine whether the Agency has currently complied with provisions 2.a., 2.d., and 2.k. of the November 24, 2014 settlement agreement. For instance, we note that, Complainant, on appeal, acknowledged there were direct deposits made in her checking account in the following amounts: $25,000, $766.40 and $33,000, respectively. Complainant stated "I have not been privy to the entire process and have not been provided paperwork explaining the amounts I received or the specific claims reasons for the delay in processing. Though I have repeatedly sought a breakdown my request have been ignored." Complainant further stated that she was never placed into a GS-13 position "which denied me the opportunity to work to promote my career goal of a GS-14."
We note that the Agency submitted copies of Complainant's "Notification of Personnel Action" without elaboration how it was related to the subject provisions. We further note that to date, there is no evidence in the record indicating how the Agency calculated the breakdown of the three lump sum payments for Complainant, and that she was placed into a GS-13 position. Therefore, we shall remand this matter to the Agency for evidence showing whether it has complied with the subject settlement agreement.
Accordingly, the Agency's finding of no breach of provision 2.a. and breach of provisions 2.d. and 2.k. is REVERSED and the matter is REMANDED to the Agency for a supplemental investigation in accordance with the ORDER herein.
ORDER
Within sixty (60) days from the date this decision becomes final, the Agency is ORDERED to take the following action:
1. The Agency shall supplement the record with affidavits and documentary evidence indicating detailed calculations and breakdown of Complainant's appropriate pay setting determinations, including but not limited to, the appropriate step for the promotion and any appropriate locality adjustment; pay Complainant a sum equal to the difference between the wages actually paid to Complainant and those Complainant would have earned had the Agency selected her for a promotion to GS-0343-13/13 at the same level as a Program Analyst position on August 15, 2010, including any bonus, wage increase, of time-off award and other benefits; and documentation reflecting what steps the Agency has taken regarding Complainant's placement into the first available Program Analyst, GS-343-13/13 position, retroactive to August 15, 2010.
2. The Agency shall issue a new final decision regarding whether it is in compliance with provisions 2.a., 2.d. and 2.k. of the November 24, 2014 settlement agreement.
A copy of the Agency's supplemental investigation and new final decision shall be provided to the Compliance Officer as referenced herein.
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), at 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 (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 29, 2015
__________________
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.
2 The settlement agreement also provides for other Agency obligations which are not at issue in the instant case.
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