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.