01993170
04-10-2002
Sherri E. Dorns, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Sherri E. Dorns v. Department of the Treasury
01993170
April 10, 2002
.
Sherri E. Dorns,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01993170
Agency No. TD 97-1364
DECISION
INTRODUCTION
Complainant filed this timely appeal with the Equal Employment Opportunity
Commission (Commission) from a final decision (FAD) by the agency's
Office of Equal Opportunity Program (OEOP) dated February 10, 1999.
See 29 C.F.R. �� 1614.402, 1614.405, 1614.504(b). In the FAD, OEOP found
that the agency may not have complied with the terms of the November
24, 1997 settlement agreement into which complainant and the agency had
entered, and ordered the agency to fully comply with the agreement, or
provide proof that it had already done so. For the following reasons,
the FAD is MODIFIED and the matter REMANDED to the agency for continued
processing as ordered below.
BACKGROUND
The November 27, 1997 settlement agreement provided, in pertinent part,
that:
The Agency will:
Restore to Complainant 108 hours of annual leave, 19.3 hours of sick
leave, 361 hours leave without pay [and] 24 hours holiday leave which
w[ere] used by complainant for maternity leave, effective within ninety
(90) days of the complete signing of this agreement.
In consideration for the Agency's compliance with the provisions of
paragraph 1, the Complainant agrees:
To withdraw [her] complaint with prejudice.
. . . .
6. The Complainant understands that any back pay amount awarded will be
computed in accordance with the Back Pay Act with appropriate deductions
taken to cover fringe benefits such as retirement, health insurance, etc.
In a letter to OEOP dated March 18, 1998, complainant claimed that the
agency was in breach of the settlement agreement, and requested that
the agency implement the settlement's terms. Specifically, complainant
claimed that the agency had only paid her for 345 hours of leave without
pay (LWOP), and that the 24 hours of holiday pay had not been restored as
agreed. She also asserted that she had been informed that, as a result of
the LWOP being restored, the agency would make the appropriate allocations
to her Thrift Savings Plan (TSP) account, and provide her with the sick
and annual leave which she would have earned during the LWOP period.
In a subsequent letter to the agency dated April 6, 1998, complainant
restated the contentions made in the March 18 letter, and added that
the agency had also failed to restore 36 hours of annual leave and to
make the appropriate TSP contributions. Complainant later asserted in a
November 12, 1998 letter that she had incurred a �tax liability� and that
her TSP account should be reimbursed accordingly, including interest.<1>
In its February 10, 1999 FAD, OEOP stated that the agency had responded to
complainant's contentions by presenting evidence that complainant had been
paid for 353 hours of LWOP, in two disbursements covering pay for 320 and
33 hours, respectively. OEOP also noted that, while complainant claimed
to have been paid for 345 hours of LWOP, she stated that she had not
received the second payment for 33 hours of LWOP, and did not account for
the 25 hour discrepancy between the agency's acknowledged first payment
and the number of hours for which she claimed to have been compensated.
OEOP concluded on this issue that complainant had only actually used 353
hours of LWOP, rather than the 361 hours agreed to in the settlement,
and therefore OEOP found �the agency's adjustment of the total amount of
restored leave without pay from 361 hours to 353 hours to be appropriate.�
OEOP then ordered the agency to provide proof that it had paid complainant
for a total of 353 hours of LWOP, and if it was unable to do so, to pay
her for eight hours of LWOP�the difference between 353 hours and the
345 hours for which she claimed to have already been compensated.
As for complainant's holiday pay contention, OEOP stated that there were
four holidays during the time period in question, and that complainant had
been in a pay status during three of those holidays, and had therefore
been paid for those holidays at that time and was not eligible for
duplicate payment. As for the fourth holiday, OEOP stated that the
agency's records showed that complainant had already been paid for that
holiday as part of �the total payment of 353 hours� of LWOP. From this,
OEOP concluded that complainant had already been paid for the 24 hours of
holiday pay at issue, and that �it appears that the intent of the parties
was to compensate Complainant for holidays for which she was not paid.�
OEOP found that the agency had not breached the settlement on this issue.
OEOP also found that the agency had presented documentation showing
that all of complainant's lost annual and sick leave had been restored.
It stated that the agency restored annual and sick leave in amounts
covering not only the amounts agreed to in paragraph 1 of the settlement,
but also the sick and annual leave which complainant would have earned
during the time period at issue. As for her TSP claim, OEOP ordered the
agency to provide an accounting of how complainant's TSP deductions were
calculated during the LWOP period, and when those deductions were made.
It also ordered the agency to provide documentation that appropriate
agency contributions, both automatic and matching, were made to her TSP
account, and to make such payments if they had not been made. The FAD
did not address complainant's income tax reimbursement request.
The agency was ordered to comply with the FAD within 30 days of its
issuance. However, complainant appealed the FAD prior to the completion
of that period, see 29 C.F.R. � 1614.504(b), and there is no indication
as to whether the agency complied with the FAD prior to the filing of
this appeal.
In her appeal, complainant raises several challenges to OEOP's decision.
First, she challenges the agency's contentions regarding the LWOP that
has been restored under the settlement agreement, and argues that if
the settlement is to be given binding effect as executed, she is owed
leave restoration in the amounts specifically described in paragraph 1
of that document. She also renews and clarifies her income tax and TSP
arguments, stating that the agency failed to make the 5% TSP payment as
a pre-tax transaction, resulting in her incurring income tax liability.
She further claims that the agency failed to provide documentation as to
whether the agency's 1% automatic TSP contribution was made during her
LWOP period. Finally, she states that she has already been compensated
for the delay in receiving her step increase. The agency presented no
arguments on appeal.
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. Department of Defense,
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. Department 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 v. United States 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).
The Commission has also recognized that, while agencies enjoy broad
authority to settle EEO disputes, they cannot agree to provide relief
which is greater than the relief a court could order if that particular
dispute were to go to trial. EEOC Management Directive 110, Ch. 12 part
II. Pursuant to the Back Pay Act, 5 U.S.C. � 5596, a party eligible for
an award of back pay under that act may only receive �all . . . the pay,
allowances, or differentials . . . which the employee would have earned
or received during the period if the personnel action had not occurred,�
plus interest. 5 U.S.C. � 5596(b). The amount of relief complainant may
receive from the agency is therefore limited to the amount of back pay and
attendant benefits which she could have been awarded had she prevailed
on her claim in a court proceeding�that is, back pay compensating her
for the actual amount of LWOP and holiday pay used, plus interest, as
well as restoration of the annual and sick leave actually used during
the period of the agency's claimed discriminatory actions, but no more.
It is clear from the face of the document that the intent of the
parties was to compensate complainant for the annual leave, sick leave,
holiday pay, and LWOP she used during her period of maternity leave.
However, the parties disagree as to the correct amount of such leave,
as well as how much of this leave has already been restored or otherwise
provided to complainant. The agency's FAD states that complainant was
only entitled to 353 hours of LWOP, and that this amount includes all
the hours of holiday leave pay to which she was entitled. The FAD also
states that the agency restored all the annual and sick leave to which
complainant was entitled, including amounts of such leave (above the
amounts agreed to in the settlement) which she would have earned had
she not been on LWOP. Complainant argues that the actual amount of
sick and annual leave used is greater than the amount the agency has
thus far restored, and that the agency improperly calculated the back
pay owed as compensation for her LWOP. Therefore, the actual amount
of leave complainant used during her period of absence from the agency,
the amount of restored leave and compensation she is due, and the amount
of such restoration and compensation that has been made by the agency,
are all in dispute. Our review of the evidence submitted reveals that the
record is inadequately developed to allow for a determination as to what
amount of annual leave, sick leave, holiday leave, and LWOP complainant
actually used and whether she has been fully compensated for that leave.
For this reason, it is the decision of the Commission to remand the matter
to the agency so that it may supplement the record with evidence clearly
showing the actual amount of the aforementioned leave complainant used
during the period in question, and to appropriately compensate complainant
according to those calculations to the extent it has not already done
so, or to provide clear evidence that it has already so compensated
complainant. As for complainant's tax liability and TSP contribution
claims, we note that, to the extent that the agency's adherence to the
Back Pay Act for purposes of calculating and awarding complainant the
amount of back pay and attendant benefits she is due under the settlement
agreement shall remedy her for these alleged income tax and TSP harms,
she is entitled to such relief by the agency under the terms of the
settlement agreement.
Therefore, for the aforementioned reasons, the FAD is MODIFIED and the
matter REMANDED to the agency for processing as ordered below.
ORDER
The Commission ORDERS the agency to comply with the terms of the November
24, 1997 settlement agreement as follows:
The agency shall fully perform its obligations under the terms of the
settlement agreement, as described in the above decision. The agency
shall restore to complainant all annual leave and sick leave, and
provide complainant with back pay (with interest), computed and awarded
in accordance with the Back Pay Act as described in the decision above,
for her leave without pay and holiday leave actually used by complainant
during the complained-of period of time.
The agency shall provide documentation to complainant describing its
performance under the settlement agreement as ordered above, including
documentation describing its calculation and award of back pay to
complainant; its restoration of annual and sick leave to complainant;
a detailed explanation of the agency's treatment of complainant's TSP
account in relation to the compensation paid complainant under the
settlement agreement; and any other documentation necessary to inform
complainant of the agency's full performance under the settlement
agreement.
The agency shall comply with the terms of this order within thirty (30)
days of the date this decision becomes final.
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
April 10, 2002
Date
1 Complainant did not indicate either the source of this
tax liability, or its amount. She simply identified it as a
�federal/state tax overpayment.�