01A22137_r
06-18-2002
Lynn D. Self, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Lynn D. Self v. Department of Justice
01A22137
June 18, 2002
.
Lynn D. Self,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A22137
Agency No. D993526
DECISION
Complainant filed a timely appeal with this Commission claiming the
agency failed to comply with the terms of the October 26, 2001 settlement
agreement into which the parties entered.
The settlement agreement provided, in pertinent part, that:
DEA agrees to pay Complainant back pay and benefits from January 3,
1999, through December 1, 2001, in accordance with 5 C.F.R. � 550.805.
As provided by law, the back pay to which Complainant is entitled is
subject to reduction by her interim earnings from employment during
the period January 3, 1999, through December 2, 1999. Complainant will
provide DEA with the necessary documentation to permit this deduction,
including but not limited to, her federal income tax return(s) and any
other information in support of her earnings in 1999, 2000 and 2001.
By letter to the agency dated January 25, 2002, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency failed to tender the correct amount of back pay
and interest due and failed to restore the appropriate annual and sick
leave to which complainant was entitled by the agreement. The agency
did not issue a decision on the breach of settlement claim prior to the
filing of the instant appeal.
On appeal, the agency contends that on February 28, 2002, the agency
paid complainant with interest and that complainant's appeal is moot.
In response, complainant claims that the agency has failed to pay
$4,489.09 in additional accrued interest to which she is entitled.
Complainant admits that she received $1,500.50 in interest. Complainant
states that the �only issue remaining is the $4,489.09 of interest due
the Complainant which was accrued on the back pay payments.�
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 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).
In the instant case, the record does not clearly show how the agency
computed the amounts due complainant under provision 5 of the agreement.
Complainant submits a summary of back pay and interest she states is due
to her under provision 5 of the settlement agreement. The Commission
cannot determine if the agency correctly calculated the amount of interest
that might be due to complainant under provision 5 of the settlement
agreement, because the agency has not clearly shown how it calculated
the payments made. Therefore, the Commission shall remand the matter so
that the agency can supplement the record with evidence clearly showing
(in a detailed account) how it calculated the amount of interest it paid
to complainant pursuant to provision 5 of the agreement. Thereafter,
the agency shall issue a new decision on the matter.
Accordingly, we REMAND the matter to the agency for further processing
in accordance with this decision and applicable regulations.
ORDER
The agency shall place into the record a detailed accounting of how it
calculated the amount of interest paid to complainant under provision 5
of the settlement agreement. Within 30 days of the date this decision
becomes final, the agency shall issue a new decision determining
whether it has complied with provision 5 of the settlement agreement.
A copy of the agency's decision must be sent to the Compliance Officer
as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (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 (R0900)
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 (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
June 18, 2002
__________________
Date