0120130113
03-12-2013
Jurea Rubit, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Jurea Rubit,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120130113
Agency No. ARLEWIS11SEP03840
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated August 24, 2012, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist at the Agency's Civilian Human Resources Agency, West Regional Director's Office in Joint Base Lewis-McChord, Washington. Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On January 5, 2012, Complainant and the Agency entered into a settlement agreement (Agreement) to resolve the matter. The Agreement provided, in pertinent part, that the Agency agreed:
(a) To engage in the interactive accommodation process including consideration of the accommodation of reassignment if the Complainant cannot be accommodated in her current position of Human Resources Specialist (HRD), GS-0201-11;
(b) To Convert and retain Complainant in a career status, retroactive to 17 August 2011, provided all legal and regulatory requirements are met;
(c) To approve Complainant's request for advance sick leave up to 240 hours in accordance with all governing laws, rules, and regulations;
(d) To approve Complainant's request for advance annual leave, for leave year 2012, up to the amount permitted by governing laws, rules and regulation. Parties believe this amount to be 162 hours;
(e) To approve Complainant's application to become a Leave Recipient under the Voluntary Leave Transfer Program, in accordance with all governing laws, rules and regulations;
(f) To provide a neutral job reference for Complainant consisting of name, title, pay plan, job series, grade level, rate of pay, and beginning employment date with the Civilian Personnel Advisory Center, Joint Base Lewis-McChord, Washington (CPAC) for a period of three years from the date of this agreement. Reference will be provided by the then current CPAC Director.
By letter to the Agency on February 3, 2012, Complainant alleged that the Agency was in breach of the Agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agreement offered no consideration because it committed the Agency to actions it was already under a legal obligation to undertake even without the Agreement. In addition, Complainant alleged that the Agency breached the Agreement by failing to approve or pay advance leave.
In its August 24, 2012 FAD, the Agency concluded it was not in breach of the Agreement. Specifically, the Agency found that it provided sufficient consideration to make the Agreement a binding one. The Agency found that, absent the Agreement, it was under no obligation to provide advanced sick or annual leave, or to provide a neutral reference, and that the Agreement therefore provided Complainant with a benefit to which she would not otherwise have been entitled absent the Agreement. The Agency further found that it had complied with the terms of the Agreement when Complainant was converted to career status. The Agency next found that 215 hours of advanced sick leave had been approved and that Complainant had not yet had the opportunity to request advanced annual leave.
ANALYSIS
We note initially that we find Complainant's allegation of breach to have been timely-raised. The Agency argues that Complainant's breach allegation was untimely. We find, however, that by presenting her notice of breach to the EEO office on February 3, 2012, which was less than 30 days after she had reason to believe that the Agency was in noncompliance, see 29 C.F.R. � 1614.504(a), Complainant essentially satisfied her requirements under the regulations.
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).
Lack of Consideration
With regard to the issue of consideration, we note that the Commission has held that generally, the adequacy or fairness of the consideration of a settlement agreement is not at issue, as long as some legal detriment is incurred as part of the bargain. When, however, one of the contracting parties incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. See Juhola v. Department of the Army, EEOC Appeal No. 01934032 (June 10, 1994) (citing Terracina v. Department of Health & Human Services, EEOC Request No. 05910888 (Mar. 11, 1992). The Agency argues it provided good consideration in agreeing to provide advanced sick or annual leave, a neutral reference, and approval of Complainant's application to become a leave recipient under the Voluntary Leave Transfer Program because under the applicable regulations such benefits were discretionary.
Complainant on appeal concedes that the Agency is correct in finding that "the regulations covering these items would all allow any Agency to deny the benefits," Complainant's Appeal Brief, p. 3. Complainant, however, maintains that she "believes that no employee [at the facility] has ever been turned down" for these benefits but that "it is impossible for [her] to confirm that." Id. We therefore find that Complainant has not satisfied her burden of establishing that the Agreement provides no consideration.
Breach
With regard to the allegation of breach, we note that Complainant alleged in her initial breach claim that advance leave was not "approved or paid" to Complainant. In its FAD, the Agency found that Complainant requested that annual leave be applied after her advanced sick leave was exhausted, and that on January 9, 2012, Complainant's supervisor (S) approved 215 hours of advanced sick leave. The Agency further found that Complainant had used just 25 hours of advanced sick leave and that the allegation of breach with regard to the advanced annual leave was "premature in that, based on [Complainant's] failure to exhaust her advanced sick leave there has been no occasion to approve and apply advanced annual leave." FAD, p. 6.
Complainant argues on appeal that, while the advanced sick leave was approved, Complainant was never paid for such leave and that "approval without payment is empty." Complainant's Appeal Brief, p. 4. Complainant further states that she "assume[s] that the Agency did not pay her for the hours after and because she was approved for worker's compensation." Id., p. 5. Complainant further argues that since her "pay under worker's compensation is just 75% of what she would have received under the advanced leave hours," id., the Agency's failure to make up the difference amounts to a breach of the Agreement.
The Agency notes on appeal that the Agreement states that the granting of advanced sick and annual leave was subject to "applicable laws, rules and regulations." Agency Appeal Brief, p. 2. The Agency notes that after the advanced sick leave was approved, but before it could be processed, Complainant's worker's compensation claim was approved and Complainant received a lump sum payment from the Office of Worker's Compensation Program and continued to receive "full workers compensation benefits without a break since that time." Id., p. 3. The Agency points out that:
Federal law prohibits an employee from receiving salary, pay, or remuneration of any kind while receiving workers compensation. (citation omitted). The Agency is precluded from providing double compensation for [Complainant] for the same period she received worker's compensation benefits. (citation omitted). As a result, the approved advanced leave has not been used; however it remains available to [Complainant] for any time not covered by worker's compensation benefits."
Id.
We note that 5 U.S.C. � 8116, which addresses worker's compensation, states:
While an employee is receiving compensation under this subchapter, or if he has been paid a lump sum in commutation of installment payments until the expiration of the period during which the installment payments would have continued, he may not receive salary, pay, or remuneration of any type from the United States.
Given that the Agreement makes the granting of, and payment for, advanced leave subject to "applicable laws, rules and regulations" and that the applicable laws prohibit Complainant receiving advanced leave pay while she is also receiving worker's compensation, we find no breach of the Agreement. While Complainant argues on appeal that the Agency should make up the difference between her worker's compensation pay and her normal pay, we find no provision in the Agreement requiring the Agency to make up any pay differential. In any event, even if the Agreement did provide for the Agency to make up the difference, such payments would be prohibited by 5 U.S.C. � 8116.
CONCLUSION
For the reasons provided above, we find that Complainant has not shown that the Agreement lacked consideration, or that the Agency breached the Agreement. We therefore AFFIRM the FAD.
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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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
March 12, 2013
__________________
Date
2
0120130113
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130113