Tawnyah Duncan, Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionNov 23, 2004
01a43410 (E.E.O.C. Nov. 23, 2004)

01a43410

11-23-2004

Tawnyah Duncan, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.


Tawnyah Duncan v. Department of Agriculture

01A43410

November 23, 2004

.

Tawnyah Duncan,

Complainant,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01A43410

Agency No. 020252

DECISION

Complainant filed an appeal with this Commission concerning the agency's

compliance with a December 19, 2003 settlement agreement. 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 the agency

agrees:

(1) To retroactively promote complainant to the GS-5, Step 1 level,

effective April 20, 2002, so that complainant receives back pay

and benefits, less any standard payroll deductions, withholdings or

contributions to which complainant normally would have been subject,

as outlined in Paragraph [5, set forth below];

(2) To retroactively promote complainant to the GS-5, Step 2 level,

effective April 20, 2003, so that complainant receives back pay

and benefits, less any standard payroll deductions, withholdings or

contributions to which complainant normally would have been subject,

as outlined in Paragraph [5, set forth below];

(3) To restore all Leave Without Pay ("LWOP") taken by complainant during

her employment with the agency. During any period that complainant

was on LWOP, complainant will receive back pay and benefits, less any

standard payroll deductions, withholdings or contributions to which

complainant normally would have been subject, as outlined in Paragraph

[5, set forth below];

(4) To remove any counseling or cautionary letters in complainant's

Official Personnel File, or other file kept by the agency, and to remove

any indication that complainant was Absent Without Leave ("AWOL") during

the period of her employment with the agency. During any period that

complainant was AWOL, complainant will receive back pay and benefits,

less any standard payroll deductions, withholdings or contributions

to which complainant normally would have been subject, as outlined in

Paragraph [5, set forth below];

To restore back pay and benefits to complainant for the period of her

employment with the agency, in the following manner:

For the period of time complainant did not receive salary or benefits

(e.g. periods during which complainant used LWOP or was deemed AWOL),

complainant will be paid all salary and benefits in accordance with her

proper Grade and Step level, as outlined in Paragraphs [1 and 2 above];

For the period of time complainant receives salary or benefits

(e.g. period of time during which complainant used sick leave or other

approved leave), the agency will adjust complainant's salary and earned

benefits retroactively in accordance with her proper Grade and Step

level, as outlined in Paragraphs [1 and 2 above];

All back pay will reflect standard payroll deductions, withholdings or

contributions to which complainant normally would have been subject

including additional retirement contributions that the agency would

have previously made if complainant had been compensated at the Grade

and Step levels as outlined in Paragraphs [1 and 2 above];

Documentation requirement to effect implementation of back pay and

benefits will be sent to the National Finance Center for processing

within twenty (20) calendar days from the effective date of the

agreement, and payment of back pay and an accounting of such back pay

and benefits will be sent to the law offices of [complainant's attorney],

within forty-five calendar days of the effective date of the agreement.

To restore complainant's used annual and sick leave during the period

of her employment with the agency. It is the parties' intention that

sick and annual leave balances will carry over into complainant's new

position with a different Federal agency. With respect to complainant's

annual leave restoration, the agency agrees that any amount over the

maximum hours allowed to be carried over (240 hours) will be retained

by complainant for the maximum period allowed by law or regulations.

After a number of telephone and e-mail communications with the agency

regarding its compliance with the above provisions, complainant filed a

breach claim on February 17, 2004. Specifically, complainant asserted

that the agency failed to provide confirmation that it took the following

action: purged counseling and/or cautionary letters from personnel files;

purged references to complainant's AWOL use; and restored complainant's

sick and annual leave. In the ensuing months, by telephone and e-mail,

complainant continued to dispute the agency's compliance with other

provisions as well, requesting that the agency provide documentation to

confirm complainant's retroactive promotions, as well as the accuracy

of the back pay amounts it tendered to complainant.

On April 14, 2004, complainant filed the instant appeal.<1> In her brief,

complainant recounts the agency's compliance efforts, but indicates that

although she received certain sums as back pay under the provisions of

the settlement agreement, the agency did not provide "detailed accounting

and documentation" to prove that the number of hours and pay rate were

correct in each instance. Complainant also asserts that the agency has

yet to provide her with documentation regarding restoration of benefits,

as well as documentation confirming her retroactive promotions or the

purging of her personnel files. Complainant also requests attorney's fees

associated with this appeal in the event that the Commission determines

that she is a "prevailing party" in this matter.

In response, the agency argues that it fully complied with the settlement

agreement. The agency asserts that it is not obligated to provide

complainant with "detailed accounting and documentation." The agency

also argues that it is complainant's burden to demonstrate an error,

and not just make bare assertions. Nonetheless, along with its appeal

statement, the agency submits documentation confirming complainant's

retroactive promotions (SF 50's), as well as its calculations for back

pay, reimbursement for AWOL and LWOP, and restoration of leave balances.

This documentation consists of calculations made both by the agency's

personnel department, and the National Finance Center, and includes

affidavits from agency officials confirming, in detail, that a correct

accounting methodology was used. The agency also provides affidavit

evidence confirming the purging of complainant's personnel records.

The agency requests that the Commission find that the agency has complied

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).

Furthermore, based on our review of the documentation submitted by the

agency on appeal, which was provided to complainant's attorney, we find

that it reflects that the agency complied with the above referenced

provisions of the settlement agreement. Specifically, as noted above,

the documentation consists of detailed calculations regarding each of the

above provisions, and evidence of payment based on these calculations.

It also contains affidavit evidence that the calculations were performed

according to the agency's standard procedure, and properly processed

through the National Finance Center. It also reflects affidavit

evidence that complainant's files were purged as per the agreement, and

that complainant was retroactively promoted. Without some indication

of where or how the agency erred in these actions, we find that the

record currently before the Commission demonstrates that the agency is

in substantial compliance with the settlement agreement. See Zeigler

v. U.S. Postal Service, EEOC Appeal No. 01A31368 (March 2, 2004).

Accordingly, for the reasons set forth above, as set forth in its

statement on appeal, we AFFIRM the agency's determination of substantial

compliance 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

November 23, 2004

__________________

Date

1It does not appear that the agency issued a final determination in

this case.