0120180914
04-19-2018
Alonso T.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alonso T.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120180914
Agency No. 280F-HQ-A5478022
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated December 12, 2017, 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 compliance action, Complainant worked as a Special Agent (SA) at the Agency's Dallas Division facility in Dallas, Texas.
On December 12, 2014, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(4) The parties further agree that this settlement constitutes the full and complete settlement of matters referenced herein;
(5a) SA [Complainant] will be transferred to the HUMINT Squad, IN 1, per SAC [named], within 90 days of the execution of this agreement;
(5b) SA [Complainant] will also continue in the [Special Agent Bomb Technician] SABT path position, to include annual training and IDYs, as appropriate;
(5c) If, within the next three years, the Dallas Division decides an additional Tactical Bomb Tech position is available, SA [Complainant] will be considered for this position, based on consultation with the squad supervisor and all other appropriate management officials, as well as a Successful PAR rating;
(7) The FBI agrees that there shall be no discrimination or retaliation of any kind against Complainant as a result of filing this charge or against any person because of opposition to any practice deemed illegal under [the laws enforced by EEOC]; and
(8) Pursuant to 29 C.F.R. 1614.504, 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. If either party alleges a breach of the terms of this agreement, the alleging party must notify the EEO Officer, in writing, of the alleged noncompliance within 30 days of when the party knew or should have known of the alleged breach.
On July 8, 2015, management canvassed the Special Agents at an All Employees Conference in Dallas regarding their interest in an 18-month "TDY to MST-A." As an incentive, employees said that those selected would be able to keep their collateral duties On July 13, 2015, another email was sent to all Special Agents, that advised them that "agents will be allowed to maintain their one collateral duty (SWAT, ERT, Firearms, Defensive tactics)." The term "SABT" was not specifically referenced. Complainant volunteered for the 18-month assignment. On September 20, 2015, Complainant joined the "Special Operations Group (SOG) program." A week after Complainant transferred, the SABT Coordinator for Dallas called Complainant and told Complainant that he had been instructed to remove Complainant from all SABT training, duties and activities. Complainant understood that this was to be a six-month removal to allow him time to get acclimated to "MST-A" work. He did not file a breach claim at that time.
The first time that Complainant alleged a breach of the settlement agreement was on June 16, 2016, when he sent an email in which he stated that he believed Dallas management was posturing itself to violate paragraph 5(c) of the settlement agreement. In addition, by letter to the Agency dated September 7, 2017, Complainant formally alleged that the Agency was in breach of the settlement agreement terms 5(b) and 5(c), and requested that the Agency implement its terms. Specifically, Complainant alleged that the Agency prevented him from continuing in the SABT path position, by preventing him from attending annual SABT trainings and stopping him from receiving information on the trainings. He also alleged that the Agency failed to consider him for the additional Tactical Bomb Tech position and was retaliated against him by selectively enforcing the collateral duty restrictions against him to prevent him from having SABT as a collateral duty.
Agency Decision
In its December 12, 2017 FAD, the Agency concluded that Complainant's breach claim was untimely, because it was not submitted within 30 days of the FBI's alleged noncompliance. Next, the Agency concluded that it did not breach the settlement agreement. The Agency reasoned that, when Complainant joined the SOG program on September 20, 2015, that nullified the FBI's compliance with term 5(a) of the Mediated Settlement Agreement. The Agency stated that Complainant voluntarily transferred off of the HUMINT Squad to "Unit X," and upon transferring to "Unit X," the Agency removed Complainant from his SABT duties. The Agency acknowledged, in its decision, that Complainant has not been permitted to attend SABT trainings. The Agency stated that this is because FBI policy explicitly prohibits agents assigned to "Unit X" from participating in overt ancillary functions and the SABT duties are an "overt ancillary function." The Agency stated that "there are no restrictions on sustainment training in order to maintain certification as a SABT, as long as it does not conflict with a SOG's member's duties and responsibilities." Management reasoned that management has the right to deny the training requests "as appropriate," as indicated in term 5(b) of the agreement. In this case, management made the determination that it was no longer appropriate for Complainant to attend certain trainings, such as the SABT training.
Additionally, the Agency found that it had not breached Section 5(c) of the Agreement. The Agency reasoned that the FBI did not breach because Complainant participated in the selection process, but he had voluntarily switched job roles within the three year time span referenced in the agreement. The Agency reasoned that the agreement did not ban management from allowing other agents from attending SABT training. The Agency advised Complainant that if he believed he was discriminated against, any new claims of discrimination, retaliation or harassment must be raised with the EEO Counselor. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that that Dallas management failed to properly document anything related to Complainant's removal from the SABT program and that its actions were in conflict with the wording of the Agreement. Complainant maintains that removing him from the training could negatively impact his employment.
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, we find that the Agreement is valid and binding on both parties.
Initially, we note that, to the extent the Agreement at paragraph 7 contained a provision that merely restated the law banning discrimination and retaliation, the provision did not provide Complainant with a benefit to which he was not already entitled. The laws already prohibit retaliation. Consequently, inclusion of the statement did not provide Complainant with any consideration that Complainant did not already have. He retains his right to file claims on any matters that he deems were discriminatory or retaliatory.
Further, we find that his breach claim was timely raised, because Complainant did not know that the Agency intended to permanently deny him the chance to continue in the SABT program by his volunteering for an 18-month detail. We see no documentation that he was removed from the SABT program.
Moreover, the Agreement at 5(b) required the Agency to continue him in the SABT path position, which would include annual training and IDYs, as appropriate. In this case, the record does not show that the Agency's actions violated the Agreement because the Agreement permitted management to make determinations regarding whether training was deemed appropriate and because Complainant agreed to a temporary transfer to a different position. Further, the Agency acknowledged that "there are no explicit restrictions on continuing to train to maintain certification as an SABT."
The Agreement at 5(c) required that Complainant be considered for any additional Tactical Bomb Tech positions that became available within the next three years. Although the squad supervisor was not asked for her input, the record shows that Complainant was given some consideration for the available position, based on consultation with other appropriate management officials.
For these reasons, we find that Complainant failed to show that the Agency breached the Agreement.
We recognize that Complainant asserts that the Agency retaliated against him when it allegedly imposed harsher standards on him regarding his collateral duty and failed to offer any documentation to show the validity of its stated legitimate reasons. To the extent that the Complainant wishes to file additional claims of discrimination or retaliation against the Agency, Complainant should contact an EEO Counselor to raise those claims.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
April 19, 2018
__________________
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.
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