Jeffrey E. Fortini,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120120420
Agency No. HS08CBP004681
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the Agency dated August 31, 2011, 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 Chief Customs and Border Patrol Officer at the Agency’s Los
Angeles/Long Beach Seaport facility in Long Beach, California. Believing
that the Agency subjected him to unlawful discrimination, Complainant
contacted an Agency EEO Counselor to initiate the EEO complaint process.
On March 12, 2010, Complainant and the Agency entered into a settlement
agreement to resolve the matter. The settlement agreement in pertinent
part obligated the Agency:
(2) To pay [Complainant] all back pay, with appropriate interest,
since March 2, 2008. The gross amount of back pay is subject to
applicable statutory deductions for taxes, retirement contributions
and any other applicable payroll deductions, as calculated by the
Payroll Branch at the National Finance Center in Indianapolis, Indiana.
This payment will be made within 60 days of the completion of the
personnel action documenting the promotion, and in the manner in which
[Complainant] receives his biweekly salary payment.
By letter to the Agency dated July 12, 2011, Complainant alleged that
the Agency was in breach of the settlement agreement, and requested
that the Agency specifically implement its terms. Complainant alleged
that the Agency failed to ensure that the National Finance Center (NFC)
provided the Office of Personnel Management (OPM) “a proper accounting
of all back pay, overtime and premium pay as it is directly related to
[his] retirement benefits compensation”
In its August 31, 2011 FAD, the Agency concluded that it was in compliance
with the Agreement between the parties. In reaching this conclusion,
the Agency determined that the error in calculation of Complainant’s
retirement benefits was made by the NFC and not by the Agency.
The record in this matter indicates that Complainant retired from the
Agency in July 2010 at which time the Agency forwarded Complainant’s
retirement information to the NFC who in turn forwarded the information
to the OPM for determination of retirement benefits. The record further
indicates that effective March 31, 2011, OPM finalized Complainant’s
retirement benefits. Complainant discovered that the retirement
calculations had been performed incorrectly and subsequently requested
that the Agency correct the error. Specifically, the record indicates
that the calculations did not include Complainant’s earnings as determined
by the Customs Officer Pay Reform Act (COPRA) as well as a cash award to
Complainant in 2008. Failure to include Complainant’s COPRA pay affected
his “high three year salary” for 2008, 2009 and 2010, which in turn
rendered the amount of back pay inaccurate. Complainant alleged that
the incorrect calculation was a violation of the settlement Agreement.
According to the Agency, the NFC at the United States Department
of Agriculture (USDA), was responsible for submitting Complainant’s
retirement information to the OPM, and did so in error. In particular,
the Agency indicates that Complainant’s pay record was not updated to
include the terms of the settlement agreement which provided him with back
pay, thereby making his “high three year” salary for the years 2008, 2009,
and 2010 inaccurate. Secondly, the Agency argues that when Complainant’s
back pay settlement was processed, the Agency forwarded the spreadsheet
to the NFC USDA requesting that $26,684.04 plus interest be paid as a
back pay in compliance with the settlement agreement. Complainant’s
proper retirement coverage code should have been 0 (zero) as indicated
in the attachment that the Agency forwarded to the NFC USDA However,
the NFC USDA technician who processed the action erroneously read the
retirement coverage as O (the letter). Under this retirement code only
1.3% for retirement was deducted and on base pay only. What should have
been deducted was 7.5% of base + overtime and the total should have been
about $1,977.00. In actuality, only 249.44 was deducted, which affected
his annuity payment. The record further reflects that Complainant was
billed $1,728.00 for the balance of the retirement deductions on July
28, 2011.
In determining its compliance with the settlement agreement, the Agency
further indicated that upon learning of the error in calculations, the
Agency worked with the NFC USDA to ensure that the error was corrected so
that the proper calculations were submitted to the OPM for determination
of Complainant’s retirement benefits.
ANALYSIS
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 (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. Dep’t 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. U.S. Postal Serv.,
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 Commission finds that Complainant failed to
demonstrate that the Agency breached the Agreement as alleged. The Agency
has provided the Commission with copies of documentation to the NFC USDA
requesting correction of Complainant’s payroll information to properly
reflect the terms of the settlement agreement entered into by the parties.
The Commission has held that pursuant to 29 CFR Section 1614.504 (b),
an agency has 35 days from the receipt of a complainant’s allegation
of noncompliance to resolve the matter, or cure any breach that has
occurred. See Covington v. USPS, EEOC Appeal No. 01913211 (September 30,
1991). The Commission has further held that if an agency cures a breach
during the 35 day period after the filing of a breach claim, it will
be deemed to be in compliance. See Caballero v. Secretary of Air Force,
EEOC Appeal No. 01A2212127 (2003).
The burden is on the party alleging breach to establish that a breach
has occurred. Based on the evidence in the record the Commission is
not swayed in finding that the agency has failed to comply with the
settlement agreement in this matter.
CONCLUSION
Accordingly, the Agency’s final decision finding no settlement breach
is AFFIRMED.
STATEMENT OF RIGHTS – ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
March 29, 2012
__________________
Date
2
0120120420
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120420
