0120151464
08-14-2015
Complainant, v. Julian Castro, Secretary, Department of Housing and Urban Development, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Julian Castro,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120151464
Agency No. HUD001252011
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated March 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 Administrative Management Specialist at the Agency's facility in Washington, DC.
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On December 15, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
The Department will reassign Complainant into an Administrative Management Specialist, GS-301-14 position reporting to [named official] or his successor, Associate Assistant Deputy Secretary, Office of Field Policy and Management, effective the date this Agreement is fully executed.
On February 16, 2015, 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 reassigned him to a new supervisor effective February 8, 2015.
In its March 11, 2015 FAD, the Agency concluded it was not in breach of the agreement given that Complainant had been in the position for three and a half years. The Agency noted that his title remained the same.
The instant appeal followed.
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).
The Commission has held that where an individual bargains for a position without any specific terms as to the length of service, it would be improper to interpret the reasonable intentions of the parties to include employment in that exact position ad infinitum. See Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Papac v. Dep't of Veterans Affairs, EEOC Request No. 05910808 (Dec. 12, 1991); see also Parker v. Dep't of Def., EEOC Request No. 05910576 (Aug. 30, 1991). In addition, the Commission has held that there is no breach of a settlement agreement "where an individual has been assigned to a position pursuant to a settlement agreement, has held the position for a period of time, and then is excised out of the position because of agency downsizing that was not anticipated at the time of the agreement." Gish v. Dep't of the Army, EEOC Appeal No. 01950923 (Aug. 14, 1995).
In the instant case, Complainant held the position for over three years. The Agency has indicated that the reassignment was done for business needs. As such, we find that the Agency has not breached the agreement.
We note that Complainant, on appeal, stated that the action was taken in retaliation for deposing his supervisor in a district court case and filing a brief against him. Complainant raised this claim in an informal complaint of discrimination, challenging his reassignment. While this decision finds no breach of the settlement agreement, the Agency should process the retaliation claim as a new complaint if it has not already done so.
The Agency's determination that it was not in breach of the agreement is AFFIRMED.
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 (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 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
August 14, 2015
__________________
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