0120160550_0120161307
05-06-2016
Bruce P.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bruce P.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal Nos. 0120160550 & 0120161307
Agency No. 14-44255-00102
DECISION
Complainant filed timely appeals with this Commission from final decisions (FAD) by the Agency dated October 1, 2015 and December 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
At the time of events giving rise to this complaint, Complainant worked as a Work Control Assistant at the Agency's facility in Bangor, Washington.
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On August 13, 2014, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
1. The Agency shall:
a. Maintain Complainant in his current position of record and billet number, and extend his temporary detail with an end date not to exceed one year from the beginning of the temporary detail (i.e. not to extend past July 17, 2015). During this temporary detail his physical work location will be PWD Kitsap, Bangor.
b. Continue to actively seek Complainant's permanent reassignment to a position at PWD Kitsap, Bangor, for which Complainant is qualified, and initiate the paperwork for permanent reassignment prior to the end of the temporary detail.
c. Once assigned to a permanent position at PWD Kitsap, Bangor, Complainant will remain subject to reassignment, as do all Navy employees, to other similar duties at his current grade within PWD Kitsap, dependent on the needs of the Navy, and in accordance with existing law, regulation, and manpower processes.
d. Re-Characterize the decision to suspend the Complainant, dated November 13, 2013, from a 14-day suspension beginning on November 18, 2013, to a suspension of 10 working days (working days defined as Monday through Friday) beginning on November 18, 2013.
3. The Agency acknowledges its obligation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e-16, not to take reprisal action against the Complainant for filing a discrimination complaint.
By letter to the Agency dated September 4, 2015, Complainant, through his attorney (Attorney), alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Complainant asserted that he was subjected to retaliation in violation of provision (3) of the Settlement Agreement. Complainant indicated that hewas issued a Notice of Proposed Adverse Employment Action - Removal, dated August 5, 2015. In addition, the Attorney stated that they would also file a formal complaint alleging discrimination concerning the removal notice.
In its October 1, 2015 FAD, the Agency concluded that Complainant failed to allege a specific concern regarding the terms of the Settlement Agreement. The Agency found that Complainant's claim of breach constituted a subsequent act which Complainant believed to be discriminatory. As such, the Agency found that Complainant's claim should be processed as a separate EEO complaint, not a claim of breach.
Complainant filed his first appeal (Appeal No. 0120160550). On appeal, the Attorney argued that the proposed removal action is one of many acts taken by the Agency against Complainant in retaliation for his prior EEO complaint.
Subsequently, the Attorney submitted more letters to the Agency alleging breach in October, November and December 2015. In these letters, the Attorney noted that Complainant had been removed and requested to submit to a psychological evaluation. The Attorney maintained that these events were not in compliance with provision (3) of the settlement agreement and constituted retaliation for Complainant's protected EEO activity.
The Agency issued a second final decision on December 11, 2015. The Agency noted again that Complainant alleged subsequent acts of discrimination. The Agency noted that these claims should be processed as separate claims of discrimination under � 1614.106 or � 1614.204. The Agency concluded that Complainant did not assert that the Settlement Agreement had been breached.
The Attorney filed an appeal from the December 11, 2015 decision (Appeal No. 0120161307). On appeal, the Attorney asserted that Complainant has been subjected to discrimination and harassment by the Agency. He noted that the Agency has attempted to affect Complainant's security clearance by demanding a psychological evaluation. The Attorney also argued that the Agency has also decided to remove Complainant and negatively impacted his ability to apply for federal jobs in the future. In sum, the Attorney contended that the Agency is subjecting Complainant to retaliation in violation of the Settlement Agreement. As such, the Attorney asked that the Commission find that the Agency's subsequent acts should be considered breach of the Settlement 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).
Upon review, we find that Complainant has not asserted that the Agency failed to comply with provisions (1)(a) - (1)(d) of the Settlement Agreement. In all his letters to the Agency, Complainant has alleged that, subsequent to signing the settlement agreement, the Agency has taken actions which he believed were in retaliation for his prior EEO activity. Pursuant to 29 C.F.R. � 1614.504(c), allegations that subsequent acts of discrimination violate the settlement agreement shall be processed as separate complaints. Complainant asserts that, following the execution of the settlement agreement, he was issued the notice of proposed removal, issued a removal action, and sent for a psychological evaluation in retaliation for his prior EEO activity. These claims should be processed as new complaints rather than breach claims. It appears that Complainant is already pursuing a new complaint or complaints on these issues. However, if he is not, Complainant should contact an EEO Counselor to pursue these subsequent claims through the EEO process.2
CONCLUSION
Accordingly, we AFFIRM the Agency's final decisions essentially dismissing Complainant's breach claims.
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 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 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
May 6, 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 The dates he filed his breach claims should be considered as the date he initiated EEO counseling for timeliness purposes.
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2
0120160550
5
0120160550 & 0120161307