0120162520
10-19-2016
Clayton C.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior (National Park Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Clayton C.,1
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120162520
Agency Nos. DOI-NPS-13-0442
DOI-NPS-14-0301
DOI-NPS-15-0624
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated July 6, 2016, finding that it was in compliance with the terms of an October 19, 2015 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On October 19, 2015, Complainant and the Agency entered into a settlement agreement to resolve a matter which had been pursued through the EEO complaint process. The October 19, 2015 settlement agreement provided, in pertinent part, that:
1. REASSIGNMENT. Complainant and the Agency agree that Complainant will be reassigned to the position of GS-12 Hydrologist at Frostburg Office in Frostburg, Maryland and will report to [Biologist], Biologist or his successor. Complainant will work remotely from NPS offices at [Washington D.C. address provided], 4 days per week. One day per week, Complainant will work on site at Frostburg. Complainant will be afforded a Government Owned Vehicle for any day he travels to Frostburg. The reassignment shall be effective no later than 30 days from the expiration of the 7 day review period following the execution of the settlement agreement. In the event of a government shut down or other exigent circumstances, this period may be extended. Complainant will continue to receive locality pay at the Washington, DC rate throughout his assignment to the NPS Frostburg facility.
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6. TRAINING. The Agency agrees to provide Complainant with 40 hours of training on EPA water resources and hazardous materials during FY 2016.2
By notification to the Agency dated March 22, 2016 and email dated March 25, 2016, Complainant alleged that breach of provisions 1 and 6. Specifically, Complainant alleged that his current supervisor breached provision 1 when the supervisor notified him that she was removing his Air Resources Coordinator duties between the NPS National Capital Region and the NPS Air Resources Division. Complainant asserted that this responsibility has been a critical element in his Employee Performance Appraisal Plan for 15 years.
Further, Complainant argued that the Agency negotiated the instant settlement agreement in bad faith, knowing that the Biologist identified in provision 1 would soon retire, and that Complainant would never had agreed to have his current supervisor as a supervisor.
Regarding provision 6, Complainant alleged that he identified the training course he wanted to take but his current supervisor and the Chief of Human Resources denied his request because the training he selected did not apply to their region.
In its July 6, 2016 final decision, the Agency found no breach concerning provision 1. Specifically, the Agency determined that there was nothing in provision 1 that the Agency management was not to remove Complainant's Air Resources Coordinator duties from him.
Further, the Agency noted that provision 1 states that Complainant would report to the Biologist or "his successor" following the signing of the settlement agreement. The Agency noted that the settlement agreement did not expressly exclude Complainant's current supervisor as a successor.
Regarding provision 6, the Agency found no breach. The Agency noted while Complainant and Agency management disagreed on what training satisfies this provision, there is no conclusive evidence that the training identified by the Agency does not pertain to EPA water resources and hazardous materials. The Agency also noted that provision 6 does not indicate that Complainant would be allowed to select training of his choice. Furthermore, the Agency determined as the fiscal year of 2016 has not yet elapsed, Complainant and his supervisor still have the opportunity to identify the appropriate training which Complainant may complete.
The instant appeal followed.
ANALYSIS AND FINDINGS
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).
Provision 1
The Agency complied with the terms of provision 1. This provision provides for an affirmative Agency obligation to reassign Complainant to the position of GS-12 Hydrologist at the Frostburg Office and report to the Biologist or his successor, and work remotely from the Agency's Washington D.C. office 4 days a week and work one day per week at the Frostburg facility.
Complainant alleged that that the intent of the parties was that the Agency would reassign him to the position of Hydrologist and report to the Biologist or his successor other than his current supervisor, and that he would still have his Air Resources Coordinator duties. However, provision 1 merely states that the Agency would reassign Complainant to the position of GS-12 Hydrologist and "report to [Biologist], Biologist or his successor." The record reflects that during the relevant period, the Biologist retired from Agency employment and the current supervisor became Complainant's supervisor. If Complainant had wanted to the successor to be anyone except his current supervisor and that he retain his Air Resources Coordinator duties, he should have included it as part of the subject settlement agreement. See Jenkins-Nye v. General Services Administration, EEOC Appeal No. 01851903 (March 4, 1987).
Provision 6
Regarding provision 6, we are unable to determine whether the Agency has currently complied with this provision. We note that in the instant final decision, the Agency stated that Complainant and Agency management were still searching an appropriate training course for Complainant to complete. Complainant, on appeal, states that he has been search for training classes that he could take since March 2016 but has not found anything that would be beneficial in his field. However, we note that, to date, there is no evidence in the record indicating Complainant completed 40 hours of training on EPA water resources and hazardous materials during the 2016 fiscal year. Therefore, we shall remand this matter to the Agency for evidence showing whether it has complied with provision 6 of the subject settlement agreement.
The Agency's finding of no breach concerning provision 1 is AFFIRMED. However, the Agency's finding that it is now in compliance with provision 6 is REVERSED and the matter is REMANDED to the Agency for a supplemental investigation in accordance with the ORDER herein.
ORDER
Within sixty (60) days from the date this decision becomes final, the Agency is ORDERED to take the following action regarding provision 6 of the subject agreement:
1. The Agency shall supplement the record with affidavits and documentary evidence indicating whether Complainant actually completed 40 hours of training on EPA water resources and hazardous materials during the 2016 fiscal year.
2. The Agency shall issue a new final decision regarding whether it is in compliance with provision 6 of the October 19, 2015 settlement agreement.
A copy of the Agency's supplemental investigation and new final decision shall be provided to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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 (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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 Complainants 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
October 19, 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 settlement agreement also provides for the Agency to expunge Complainant's SF-50 showing his 11-day suspension and the Proposed Suspension 3 years from the date on which the suspension is imposed; pay Complainant a lump sum payment in the amount of $12,500; expunge all Absent Without Leave charges from 2012 to present and reimburse Complainant for that time; and expunge the Letter of Reprimand. These provisions are not at issue in the instant case.
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