0120160454
09-22-2016
Alberto O.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alberto O.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120160454
Agency No. ARHQOSA12MAR0990
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated June 11, 2015, 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
On January 30, 2013, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(4a) The Agency agrees ... to modify Complainant's performance appraisal for the performance rating cycle of 1 July 2011 through 30 June 2012, as follows:
(1) Change Part VIII, Overall Performance Rating, from a level '4' (Fair) to a level '3' (Success); and
(2) Remove the third bullet comment from Part IX - Senior Rater Comments.
(9) If Complainant believes that the Agency has failed to comply with the terms of this Agreement, he shall notify the Director, Equal Employment Opportunity Compliance and Complaints Review (EEOCCR) . . . in writing, of the alleged non-compliance within 30 calendar days of when he knew or should have known of the alleged non-compliance.
On or about February 5, 2013, the Agency provided Complainant with a copy of an updated Senior System Civilian Evaluation Report, DA Form 7222. On February 7, 2013, the Activity's Senior Human Resources Specialist forwarded the updated Evaluation Report to the servicing Civilian Personnel Advisory Center (CPAC) with a request that the corrected evaluation be placed in Complainant's Official Personnel File in place of the previous evaluation, which reflected a lower rating.
Subsequently, on April 6, 2015, Complainant learned that the appraisal provided to him might not be authentic or valid. Complainant asserts that he learned on May 19, 2015 that the corrected copy was not in his current official file.
By letter dated May 19, 2015, Complainant advised the Activity's General Counsel that he believed that the Agency was in breach of the settlement agreement. Complainant requested that the Agency reinstate his complaint. On May 20, 2015, the CPAC Director forwarded the corrected appraisal to the Civilian Human Resources Agency (CHRA), along with a request to update the applicable electronic civilian personnel records system. The record confirms that the corrected appraisal was substituted in Complainant's Official Personnel Folder (eOPF) and in the Defense Civilian Personnel Data System (DCPDS) on that same day. The next day, management advised Complainant that Complainant's appraisal of record reflected a performance rating of level 3, as specified in the Agreement.2
In its June 11, 2015 FAD, the Agency found no breach of provision 4a. The Agency stated that there was no provision in the Agreement which required the Agency to update Complainant's eOPF or other electronic personnel records by a certain date. The Agency also noted that it did modify the rating within a week of the Agreement and had furnished it to the servicing CPAC for processing. In addition, the Agency stated that once Complainant's concerns were raised, it took immediate steps to correct the apparent oversight. The Agency concluded that it specifically performed all of its obligations under the actual terms of the Agreement and had corrected its records. The Agency also maintained that the appeal should be denied because the claim was not submitted to the Agency within 30 days of the time that Complainant became aware of the breach.
On appeal, Complainant asserts that his non-compliance claim was not untimely and further claimed that he was harmed by the Agency's breach. Complainant acknowledged that he incorrectly documented the date that he learned of the noncompliance as April 6, 2015, but he states that he did not actually know of the breach until May 5, 2015 and his claim is therefore timely.
Complainant also maintains that the Agency fostered a hostile work environment for African-Americans, in November of 2014, by sanctioning the depiction of the Confederate Flag at an event held at the Manassas Battlefield and by its patronage of the Washington Times newspaper.
In response, the Agency contends that Complainant has not offered any evidence that he was harmed or that his ability to compete for training or outside employment was compromised. The Agency also argues that Complainant "is not introducing any cogent evidence or argument that would show the Agency had thereby breached the terms of his Agreement." Next, the Agency contends that the alleged hostile environment claim for the November 2014 event is outside the scope of the Agreement.
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 Agreement required the Agency "to modify Complainant's performance appraisal for the performance rating cycle of 1 July 2011 through 30 June 2012 by changing the rating from a level 4 to a level 3." The record shows that the Agency requested the change within a week of the effective date of the Agreement and then took steps to correct its omission in verifying that the correct rating was actually placed in Complainant's OPF, once Complainant brought the matter to the attention of the Agency officials. There is no evidence to show that Complainant was harmed.
We find that the claim regarding the November 2014 event and Washington Times newspaper patronage are not issues addressed in the Agreement.
To the extent that the failure to ensure that the OPF was updated could be construed as a breach, we find that the Agency cured the breach by correcting its omission within 30 days of the date that the breach claim was raised with management. The Commission has held that pursuant to 29 C.F.R. � 1614.504(b), an agency has 35 days from the receipt of notice of non-compliance to resolve the matter, or cure any breach that occurred. The Commission has further held that, if an agency cures a breach during the 35-day period following the breach notification, it will be deemed to be in compliance. Eckholm v. Department of Veterans Affairs, EEOC Appeal No. 0120091193 (April 29, 2009).
We find that Complainant has not shown that the Agency breached the agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's June 11, 2015 Final Decision, finding no breach.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 tends 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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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
September 22, 2016
__________________
Date
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 Complainant filed a prior appeal alleging breach of this settlement agreement with regard to paragraph 4c. In Complainant v. Department of the Army, EEOC Appeal 0120132669 (Jan. 16, 2014), we affirmed the Agency's Decision, finding no breach.
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