[Redacted], Cletus W., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 11, 2022

Appeal No. 2022001599 (E.E.O.C. Oct. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cletus W.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022001599 Agency No. 200I-0509-2016103087 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an undated Agency document2, 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 Physician, GS15 Step 14, at the Agency’s Medical Center in Augusta, Georgia. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an EEO Counselor to initiate the EEO complaint process. On August 11, 2021, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (2)(a) The Agency HR will review all general adjustments, within grade increase (WIGI), market pay reviews as appropriate and performance pay reviews from January 2014 through January 2020 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 We deem the document, entitled “Agency Response to Petition for Enforcement” to constitute the final Agency decision (FAD). 2022001599 2 to generate respective SF50s within thirty (30) days to provide to DFAS [Defense Finance and Accounting Service] to authorize a payment in the estimated amount of $57,382 in backpay payable to the Complainant. (2)(b) The Agency will make a payment in the estimated amount of $57,382 in liquidated damage [sic], payable to the Complainant. (2)(c) The Agency will make a payment in the amount of$35,000 in attorney's fees, payable to the Complainant within thirty (30) days. (2)(d) The Agency HR agrees to provide updated SF50s within thirty (30) days to DFAS to make an adjustment of Complainant's High 3 Salary (hereinafter "New High 3 Adjustment") based on corrected SF50s from 2014 to 2020. (2)(e) DFAS will notify OPM to recalculate/adjust the Complainant's annuity payments and benefits based on the updated SF50s and New High 3 Adjustment. On November 9, 2021, by facsimile transmittal, Complainant submitted a document entitled “Complainant’s Petition to Enforce Settlement Agreement or Reinstate Claims” to the Agency and the Commission. Complainant alleged that the Agency was in breach of the settlement agreement and requested that it specifically implement the terms. Complainant noted that while the agreement stated that if he believed a breach had occurred to contact the Deputy Assistant for Resolution Management, the agreement failed to include the Deputy Assistant’s contact information. Therefore, Complainant sought to file a petition for enforcement of the agreement with the Commission. Specifically, Complainant alleged that the Agency failed to, within the 30- day timeframe, pay $35,000 in attorney’s fees and provide updated SF50s to DFAS. In its undated response, which we deem to constitute the Agency’s final decision on the breach claim, the Agency concluded it was in substantial compliance with the Agreement. The Agency maintained that: As of [the date of Complainant’s breach allegation] the Agency had submitted the SF50s to DFAS in compliance with terms a, d, and e. The Agency processed Complainant’s attorney’s fees payment around November 17, 2021, and on December 13, 2021, Complainant’s counsel confirmed that Complainant had received the attorney’s fees payment. . . . As of this date, the Complainant has acknowledged receipt of the attorney’s fees (term c) and at least a portion of the back pay (term a). . . . DFAS is still calculating the lump sum market pay to make Complainant whole. 2022001599 3 Although the liquidated damages are paid by the facility, the facility needs the total amount of all back pay including the lump sum market pay, in order to have the correct liquidated damages payment amount. At this time, it appears that the only item of relief that the Agency has not, at least in part performed, is payment of the liquidated damages, which it is waiting for the final total from DFAS. ANALYSIS As a preliminary matter, we note that the parties do not dispute that Complainant did not first file an allegation of breach directly with the Agency before filling the instant appeal as required by 29 C.F.R. 1614.504(a). Complainant explains she did not have the correct Agency contact information to do so. Nevertheless, the Agency issued a response to her breach allegations when it was served with her appeal. In the unique circumstances of this case, and in the interest of supporting voluntary settlement agreements to resolve EEO complaints, we will consider the Agency’s response as its final decision on Complainant’s breach claims and will exercise our discretion to accept Complainant’s appeal. 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 (Dec. 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 (Aug. 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 (Dec. 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). On appeal, Complainant acknowledges that the Agency has since paid his attorney’s fees and provided him with a copy of the SF-50s. However, Complainant argues, the Agency has still not fully met its payment obligations. Complainant contends that the Agency sent him a check for $47,811.97 “in an envelope with no payment information showing deductions for taxes or other employee withholdings, let alone anything in writing confirming whether the payment represented backpay or liquidated damages.” In addition, Complainant notes: There is no indication that the Agency, DFAS, or OPM have recalculated and adjusted the Complainant’s annuity payments and benefits based on the updated SF50s and New High 3 Adjustment. Complainant has not received the lump sum market pay, monetary adjustments to his annuity pay, TSP, etc., that he is entitled to as a result of the High 3 calculation. 2022001599 4 In its March 14, 2022, response, the Agency explains that the $47,811.97 payment constitutes backpay. Further, it notes that in a February 24, 2022 email to Complainant and his counsel, prior to the instant appeal, the Agency provided a detailed explanation of the payment. The Agency asserts the email included an Excel audit breakdown, an explanation of how the lump sum market pay should be calculated and advised that Complainant would be receiving additional monies. The record includes a copy of the email, which we note was sent to Complainant’s counsel but does not appear to have been sent to Complainant. We further note that the email, while quite detailed, does not appear to include an “excel audit breakdown” but otherwise does clearly explain that the $47,811.97 payment constitutes net backpay “after standard deductions TSP, FERS, FEGLI, etc. . . . including the interest for market pay back pay” and further explains how the amount was calculated. Additionally, the Agency email explained that OPM still has to recalculate Complainant’s annuity, pointing out that OPM is a separate agency. In its response brief, the Agency also asserts that it was only obligated to provide DFAS with the updated SF-50s and that DFAS “has its own process to make adjustments to the high 3 salary” before notifying OPM to recalculate or adjust Complainant’s annuity payments. In addition, the Agency contends that under the settlement terms, it “was not obligated to inform Complainant of the outcome of the high 3 salary or annuity payments adjusts [sic] or ensure that he received any monetary adjustments due to the changes from the new SF50s.” Therefore, according to the Agency, it has substantially complied with the agreement and that “the only outstanding term from the Agency is the payment of lump sum market pay and the liquidated damages.” We cannot help but observe that the Agency did not submit the SF-50s and pay Complainant attorneys fees, as required by the agreement, until after she filed the instant appeal. The August 11, 2021 agreement obligated the Agency to take these actions within 30 days. Instead, it did not do so until approximately three months after the agreement was executed. The Agency does not dispute that the liquidated damages remain unpaid (provision (2)(b)), and that the adjustment to Complainant’s High 3 Salary and corresponding recalculation of his annuity payments and benefits have not occurred (provisions (2)(d) and (2)(e)). It argues that no timeframe for these actions was set forth in the agreement, and that they must be completed by external agencies. While true, the Agency is reminded that the Commission has previously held that in the absence of specific time frames, the terms of an agreement must nevertheless be fulfilled within a reasonable amount of time. Gomez v. Department of the Treasury, EEOC Request No. 05930921 (Feb. 10, 1994). The instant record does not indicate that any subsequent efforts were made by the Agency to contact DFAS, following its delayed initial request, to expedite the payment nor is there any documentation reflecting that payment has been received. Consequently, we do not find the Agency is in compliance with the August 11, 2021 agreement. 2022001599 5 CONCLUSION Accordingly, the Agency’s decision finding it was in compliance with provisions (2)(a) and (2)(c) is AFFIRMED. The Agency’s decision regarding provisions (2)(b), (2)(d), and (2)(e) is REVERSED and the matter is REMANDED for further processing in accordance with the Order below. ORDER Within thirty (30) calendar days after this decision is issued, to the extent it has not already done so, the Agency must ensure full compliance with provisions (2)(b), (2)(d), and (2)(e) through DFAS. Any extension request to complete compliance must be accompanied by an explanation of the continued delay and emails or other dated documentation of the Agency’s continued efforts to work with DFAS, including, if applicable, actions taken to escalate this matter within DFAS to expedite its resolution. The Agency must submit evidence of compliance as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0719) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2022001599 6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2022001599 7 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (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 11, 2022 Date