0120151526
08-14-2015
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120151526
Agency No. 100002702890, 106739901649
DECISION
Complainant filed a timely appeal with this Commission from two final decisions ("FADs") issued by the Agency, dated March 9, 2015 and April 15, 2015; finding both times 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 Financial Manager, GS-0505-13 at Administration and Resource Management Division of the Agency's Headquarters in Washington, D. C.
Believing that the Agency subjected him to unlawful discrimination (race and reprisal), when it downgraded his position, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process on August 3, 2010. An administrative hearing on the matter (EEOC Hearing No. 570-2011-00882X) was scheduled for July 24, 2014, but before it began, Complainant and the Agency resolved his complaint by entering into the settlement agreement ("the Agreement"), from which the instant claim arose.
The Agreement, in pertinent part, required the Agency to:
A. Arrange for a trained expert to conduct a desk audit of Complainant's position and generate a desk audit report, allowing Complainant the opportunity to review and comment on the report.
B. Submit the completed desk audit report to the Agency Office of Human Resources (HR), which will then assign three (3) trained classifiers to independently conduct a classification review of the position based upon the desk audit report. Based on the three evaluations, the majority result shall govern the Complainant's position grade determination. Both parties shall receive copies of the three evaluation reports.
Complainant has since submitted two breach notices to the Agency. Breach Notice 1, dated February 10, 2015, alleges that the Agency failed to send the three evaluation reports to Complainant, as required in term B of the Agreement. Breach Notice 2, dated March 10, 2015, alleges that the reports were incomplete.
In FADs issued on March 9, 2015, and April 15, 2015, for Breach Notice 1 and Breach Notice 2 respectively, the Agency concluded that no breach occurred. Specifically, the Agency cited its delivery of the three evaluation reports on February 10, 2015, and Complainant's own acknowledgement that the Agency performed all of the actions required in parts A and B based on the "plain meaning rule" of contract interpretation.
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 Agency rendered Breach Notice 1 moot when it delivered the three evaluation reports to Complainant in accordance with term B of the Agreement. Complainant's allegations that the Agency only sent the reports because he sent the breach notice, and that it ignored his prior requests, speak to expectations outside the terms of the Agreement. The Agreement only states that "[b]oth parties shall receive copies of the three evaluation reports," not that the Agency must send the reports within a designated time-frame. Additionally, there is no indication in the record that the Agency unduly delayed performance of the Agreement.
In Breach Notice 2, Complainant alleges that the desk audit and evaluation reports are incomplete, citing the documents and input that he provided to the auditor and classifiers and a list of responsibilities specific to his position, which did not appear in the reports. However, term A of the Agreement requires only that an expert perform a desk audit and generate a report, and term B of the Agreement specifies that the Agency is to provide the HR classifiers with "the completed desk audit report, along with supporting documentation and any documentation provided by Complainant after review of the desk audit report." A "plain meaning" interpretation of the Agreement does not identify specific evidence, such as the items enumerated by Complainant, to include in the reports, instead leaving it to the expertise of the auditor and classifiers. As Complainant's allegations do not apply to a term of the Agreement, there is no breach. Further, the allegation itself necessitates Complainant's acknowledgement that the Agency did perform its obligations under terms A and B of the Agreement.
Accordingly, we AFFIRM both of the Agency's final decisions dismissing Complainant's breach complaints.
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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 14, 2015
__________________
Date
2
0120151526
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120151526