01a42717
03-04-2003
Lewis Wilson, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.
Lewis Wilson,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Agency.
Appeal No. 01A42717
Agency No. 94REF006
DECISION
Complainant filed the captioned appeal concerning the agency's compliance
with a February 20, 2003 settlement agreement, as amended on March 4,
2003. The Commission accepts the appeal. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
(2) The agency will retroactively promote complainant according to
the following time table:
Upgrade to GS-9, Step-7: effective
April 28, 1996
Quality Step Increase to GS-9, Step 8: effective April
27, 1997
Promotion to GS-11, Step 4: effective
December 21, 1997
Within-Grade Increase to GS-11, Step 5: effective December
19, 1999
10% Retention Allowance effective October
22, 2000
Quality Step Increase to GS-11, Step 6 effective February
11, 2001
Conversion to AD-11 effective
January 13, 2002
Leave Without Pay NTE October 5, 2002 effective May 3,
2002
Reassignment to Environmental Specialist, GS-9, Step 9: effective October
6, 2002
The agency will pay to the complainant any additional back pay
accrued as a result of these actions, with interest. The SF-50's
implementing all required pay adjustments will be forwarded
to the Defense Finance and Accounting Service (DFAS) by "WHS"
within 14 calendar days of the execution of this agreement;1
(3) It is the understanding of the parties that DFAS will calculate
back pay based upon the complainant's time and attendance records
currently in the DFAS data base, including overtime, that DFAS will
make deductions for complainant's retirement, life insurance and Thrift
Savings Plan [TSP] contributions, that DFAS will withhold estimated
state and federal income taxes and that DFAS will calculate interest on
the gross amount of the back pay pursuant to 5 U.S.C. � 5596 (b)(2).
The agency will request that DFAS complete the calculations and remit
the amount due to the complainant within 30 calendar days of receipt of
the SF-50's [as referenced above];
(4) Pursuant to the Last Chance agreement [executed by the parties on
September 30, 2002], the complainant will be assigned to the position of
Environmental Specialist, GS-028-09, Step 9, effective October 6, 2002.
The complainant's basic rate of pay, as defined at 5 C.F.R. � 102, will
be set at $61,382 per annum, and his total pay as of October 6, 2002,
will include the basic rate of pay plus locality pay, totaling $68,429
per annum. As long as the complainant continues to comply with the terms
of the Last Chance Agreement, the agency agrees to continue indefinitely
to pay complainant a total pay package including: the specified basic
rate of pay, plus locality and all other applicable pay adjustments,
as set forth in 5 C.F.R. �� 536,104, 536.205 and 536.209.
By letter to the agency dated April 28, 2003, complainant, through
his attorney, claimed that the agency failed to comply with the above
referenced provisions of the settlement agreement. Specifically,
complainant asserted that he had "not been retroactively promoted nor
has he received any back pay or had his current pay rate adjusted to
GS-028-09, Step 9, $68,429, per annum (save pay), effective retroactively
to 10/6/02." Next, on July 22, 2003, complainant notified the EEO office
that DFAS, without explanation, charged him with a $1,870.66 overpayment.
Then, on September 23, 2003, complainant, through his attorney, sent
a second letter of noncompliance. Therein, he claimed that he had not
received a "full and complete back pay computation worksheet from DFAS,
which, in turn, has caused his pay to be docked for reasons not yet made
clear to him." Additionally, complainant's attorney asserted that he
had not received "any calculation information regarding his TSP matching
fund contributions dating back to 1994, including interest payment;." and,
that he "believed" that there was an error in the setting of his pay rate.
Moreover, complainant's attorney indicated that he had been engaged in
an on-going discourse with the agency's legal counsel to obtain this
information, to include requesting a face-to-face meeting with pertinent
agency personnel to obtain clarification of these various calculations,
and indicated that he continues to desire such a meeting. As an
additional remedy, complainant, through his attorney, requested attorney's
fees and expenses incurred in obtaining the agency's compliance.
On March 10, 2004, complainant, through his attorney, filed the instant
appeal, indicating that the agency failed to formally respond to his
long and on-going attempts to resolve compliance issues, as set forth
in the above described correspondence. More specifically, complainant
acknowledged that the agency eventually promoted him retroactively
in accordance with the settlement agreement provisions, but that "it
has still been unable or incapable of determining the correct back pay"
which he is entitled to receive. Additionally, complainant requests that
the Commission order the agency to pay him all other appropriate relief,
including attorney's fees incurred since July 2003.
In response, the agency argues that it substantially complied with the
above referenced provisions. The agency indicates that it provided
DFAS with the SF-50's needed to implement the actions in the agreement
on March 24, 2003, and that a back pay check was issued on May 9, 2003.
However, the agency noted that on that same date it learned that DFAS
did not receive the SF-50's required to implement the "save pay" aspect
of the settlement agreement, but that personnel forwarded them in time
for complainant's May 9, 2003 pay check to reflect the correct salary.
The agency argues that as of May 9, 2003, it complied with the settlement
agreement. Specifically, the agency argues that as of that date,
complainant's base pay and total salary were set at the levels reflected
in the settlement agreement, and complainant's pay rate determinant
correctly specified his save pay status. The agency noted that these
changes were made retroactive to October 6, 2002, with complainant
receiving a lump sum for back pay and interest, as calculated by DFAS.
The agency attached pertinent documentation for verify these statements.
As further evidence of its good faith efforts to comply with the
settlement agreement, the agency noted that when complainant notified the
EEO office of the $1,870.66 overpayment, charged by DFAS, it attempted
to ascertain the reason for it, and requested that DFAS not make any
deductions to recover it. The agency attached pertinent documentation to
verify these statements. Additionally, with reference to complainant's
second noncompliance letter, the agency indicated that it provided his
attorney with copies of all SF-50's implementing the required pay status
changes, along with a pay period by pay period calculation from DFAS,
again providing copies of pertinent documentation.
The agency further explains that the pay calculations in this case
were unusually complex, and that for this reason, the parties agreed
to designate DFAS to make them. Regarding the assessed overpayment,
the agency asserts that DFAS provided a complete accounting, and that
there is no indication that the calculation are not based solely on
complainant's time and attendance records. The agency argues that because
complainant does not argue that the SF-50's used by DFAS are incorrect,
or that any of the calculations are improper, the determinations made
by DFAS, to include an assessed overpayment, are binding.
In concluding, the agency avers it complied with the settlement agreement
because it implemented all personnel actions, to include reinstating
complainant, with "save pay" at $68,429 per annum, and provided him with
back pay in two installments, along with the DFAS spreadsheets explaining
these payments, on February 2, 2003 and December 12, 2003.
By letter to the Commission dated August 3, 2004, complainant's attorney
notes receipt of a statement notifying complainant that the agency
was still working calculating his lost earnings and retroactive TSP
calculations, thereby undercutting the agency's position that it is in
compliance 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). 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. Department 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. United States Postal
Service, 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 provides documentary evidence that it implemented the personnel
actions specified in the above referenced provisions of the settlement
agreement, and that it provided DFAS with the necessary information
to process complainant's back pay, and to calculate the resulting
changes to the balances allocated to his benefits, such as his TSP fund.
Furthermore, the record reflects that the agency provided complainant's
attorney with copies of SF-50's and spreadsheets to explain how DFAS
made these calculations. Complainant asserts that he "believes" that
there are errors in these calculations, noting the agency's slower than
desired response to his inquiries and requests, and the DFAS assessed
overpayment. However, complainant provides no specific argument, or
evidence, demonstrating such error. After careful review of the record,
we find that the agency acted in good faith to fully implement the terms
of the settlement agreement. Moreover, even to the extent that there
are still some remaining adjustments on which DFAS is working, given
the complexity of the actions required by the settlement agreement, and
given that active compliance efforts continue, we find that the record
supports a finding that the agency has substantially complied with the
settlement agreement.
Accordingly, for the reasons set forth above, we AFFIRM the agency's
determination that it substantially complied with the settlement
agreement.
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 (S0900)
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 (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
July 14 ,2006
__________________
Date
11 The record reveals that on March 4, 2003, WHS Personnel and Security
(Personnel) notified the agency's General Counsel that they did not
believe they could process the February 20, 2003 settlement agreement
as written. Therefore, the parties amended the settlement agreement to
change "Within Grade Increase to GS-11, Step 6, effective February 16,
2001," to a "Quality Step Increase, effective February 11, 2001," and
changing the effective date of the conversion to AD-11 from January 1,
2002 to January 13, 2002.
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01A42717
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A42717