0120180636
09-20-2018
Azucena A,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Azucena A,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120180636
Agency No. IRS170623
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 27, 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 at the Agency's W&I Service Center facility in Austin, Texas.
On August 30, 2017, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(1a) Within 30 days of signing of this agreement, the Austin Accounts Management AM Operations 3, will issue a revalidated 2017 (APR 2016-MAR 2017) rating of 4.0 to the 2016 (APR 2015 - MAR 2016) rating and narrative to the aggrieved party;
(1b) Within 30 days of signing of this agreement, the Director of Austin Accounts management will issue a directive to the Accounts Management AM Operations 3, to ensure the aggrieved party is receiving copies of any signed documents issued to her by her manager at the time of signature. The Accounts Management AM Operations 1, will provide an e-mail "conformation" [confirmation] to the aggrieved party once this action is completed; and
(5) This agreement constitutes the complete understanding of the parties. No other promises are binding unless they are in writing and signed by the parties.
By letter to the Agency dated November 26, 2017, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency implement its terms. Specifically, Complainant alleged that the Agency failed to confirm, via email, that the directive referenced in paragraph 1(b) was issued within 30 days of the signing of the Agreement. She also said that she did not receive a copy of "a monitor" that she signed. Complainant states that she is seeking extensive monetary compensation, including "compensatory damages, punitive damages and tort and breach of contract damages and all of the relief that she requested in the original EEO complaint # IRS 17-0623," which was intended to be resolved by this Agreement.
Agency Decision
The Agency concluded that there had been no breach. The Agency reasoned that "a verbal directive was issue to the Accounts Management Operations 3 Manager on September 1, 2017." The Agency stated that Complainant was also sent an email, dated October 30, 2017, confirming that the verbal directive had been given. The Agency disagreed with Complainant's interpretation requiring the Agency to send her a written confirmation email within the 30-day time frame. The Agency stated that the Agreement only required that the Agency give the directive no later than September 29, 2017. The Agency also determined that the provision, which references the confirmation email, did not have a required timeframe. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that the Agency failed to comply with the terms of the Agreement and showed her disrespect when the Agency did not comply with 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).
We find the Agreement is valid and binding on both parties.
In the instant case, the Agreement required the Agency to issue a directive, within 30 days of the signing of the Agreement, to ensure the aggrieved party is receiving copies of any signed documents issued to her by her manager at the time of signature. One action at issue was the issuance of the directive. The Agency says it issued the directive on September 1, 2017. The Agreement also required that the Accounts Management AM Operations 1 provide an e-mail confirmation to the aggrieved party immediately after the action was completed. Although the Agreement did not preclude a verbal communication, it did require that Complainant receive notice once the action was completed. She was not given immediate notice of the verbal action.
We find, therefore, that the record supports Complainant's claim that the Agency breached the Agreement.
Where this Commission finds that the settlement agreement has been breached, the only two remedies usually available are specific performance of the terms of the agreement or reinstatement of the underlying EEO complaint at the point processing ceased. See 29 C.F.R. � 1614.504 (c).
Complainant did not clearly specify in her notice of breach which remedy was preferred and she requested other relief that is not available at this stage of the breach determination. Therefore, we give Complainant the option, in accordance with this decision and the ORDER below, of either reinstating her underlying EEO complaint, or specifically enforcing the terms of the Agreement. If she wishes to return to the status quo prior to the signing of the agreement, her rating, however, would return to what it had been prior to the settlement agreement, if she chooses to reinstate her complaint.
To the extent that Complainant wishes to address new claims of discrimination or retaliation, regarding actions that arose, or damages that accrued, after the execution of the August 30, 2017, she should initiate EEO counseling with the Agency as those subsequent claims must be addressed in a separate complaint or appeal.
CONCLUSION
We find that the Agency breached the August 30, 2017 Agreement. Accordingly, we REVERSE the Agency's Breach Decision and REMAND the matter in accordance with the ORDER below.
ORDER (C0618)
The Agency is ordered to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision becomes final, the Agency is ordered to notify Complainant of her option to either return to the status quo prior to the signing of the settlement agreement or to obtain specific performance of the agreement. The Agency shall also notify Complainant that she has fifteen (15) calendar days from the date of her receipt of the Agency's notice within which to notify the Agency either that she wishes to return to the status quo prior to the signing of the agreement or that she wishes to allow the terms of the agreement to stand. Complainant shall be notified that in order to return to the status quo ante, she must return any benefits received pursuant to the agreement. The Agency shall determine its obligations due to Complainant, or return of consideration or benefits due from Complainant, within thirty (30) calendar days of the date this decision becomes final, and shall include such information in the notice to Complainant.
2. If Complainant elects specific performance, the Agency shall notify Complainant that the terms of the settlement agreement shall stand and the Agency will abide by all of the terms of the Agreement.
3. If Complainant elects to reinstate her EEO complaint, the Agency shall resume processing the EEO complaint from the point processing ceased. The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date of this decision, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
4. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSep). See 29 C.F.R. � 1614.403(g). Further, the report must include supporting documentation of the Agency's compliance, including evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)
Under 29 C.F.R. � 1614.405(c) and � 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via Fed SEP a final compliance report in the digital format required by the Commission., and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant and his / her representative.
If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 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. 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 20, 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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