0120160446
04-19-2016
Dante B.,1 Complainant, v. Dr. Ernest Moniz, Secretary, Department of Energy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dante B.,1
Complainant,
v.
Dr. Ernest Moniz,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120160446
Agency No. 150052HQLM
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated October 26, 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 compliance action, Complainant worked as a 100% Limited Term Telework Employee, based at the Agency's Morgantown business Center in Morgantown, West Virginia, but with a Work Station in Michigan.
On August 11, 2015, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(2) DOE agrees to reassign Complainant from his current position as Archives and Information Management Team Leader to a position in the Office of Legacy Management (LM) at his current grade level, as soon as practicable after signing this agreement, but no later than October 1, 2015;
(3) DOE agrees to place Complainant in a limited term, 100% regular telework status from the date of settlement to April 30, 2016;
(4) DOE understands that Complainant intends to telework from the State of Michigan; and
(5) The parties agree not to disclose the terms and conditions of this Agreement... and provided further, that DOE may disclose the terms and condition of the Agreement to only employees of DOE who have need to know in the approving or processing of this agreement.
By letter to the Agency dated October 6, 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 100% telework agreement did not mean that he should not retain an office at the West Virginia work site. In addition, Complainant alleged that management breached the Agreement when it "told someone" to deactivate Complainant's electronic building access card to the Morgantown Business Center and failed to give him work.2
In its October 26, 2015 FAD, the Agency concluded that management complied with the terms of the Settlement Agreement and determined that it had not breached the Agreement. This appeal followed.
On appeal, Complainant argues that management officials have continued using the performance management system to discriminate and harass Complainant and created a performance plan for 2016, that was designed for the Complainant to fail and has nothing to do with his position description. Complainant maintains that "there are credibility issues in the records which can only be reconciled by a hearing with direct examining of the witnesses."
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 place Complainant in a limited term, 100% regular telework status from the date of settlement to April 30, 2016. The Agreement specified the Agency understands that "Complainant intends to telework from the State of Michigan" and his telework agreement would reflect the "relocation to Michigan." There was nothing in the Agreement that required the Agency to maintain a vacant office for Complainant. There is also no evidence that anyone, other than the payroll officials, had knowledge of the terms of the Agreement.
To the extent that Complainant is raising new incidents of discrimination, he should contact the EEO Counselor to present his claims.
For all of these reasons, we find that Complainant has not shown that the Agency breached the Agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's October 26, 2015 Notice of Final Agency Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 tends 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, 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 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
April 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 Complainant has submitted subsequent breach claims, which are the subject of two other pending EEOC Appeals, EEOC Appeal 0120161311 and EEOC Appeal 0120161430.
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