0120161430
05-03-2016
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. 0120161430
Agency No. 150052HQLM
DECISION
Complainant filed a timely appeal with this Commission from the Agency's March 25, 2016 final decision (FAD), 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% Telework Employee, based at the 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;
(6) Complainant agrees to submit his resignation within 5 calendar days before the expiration of the telework agreement; Complainant's resignation shall be effective no later than April 30, 2016;
(7) If Complainant fails to resign by April 30, 2016, he agrees to return the lump sum payment described above in Term 5;
(13) Complainant understands that he must maintain a rating of, at least, "Meets Expectations" during FY 2016 in order to remain eligible for telework. Complainant agrees to coordinate his work schedule with his immediate supervisor; and
(19) The parties agree not to disclose the terms and conditions of this Agreement... and provided further, that DOE may disclose the terms and conditions of the Agreement to only employees of DOE who have a need to know in the approving or processing of this agreement
The Agency reassigned Complainant to a position in the Office of Legacy Management (LM), effective September 1, 2015. Since that reassignment, Complainant's supervisor determined that Complainant's performance had fallen below the "meets expectations" level.
By emails to the Agency dated February 26, 2016, March 3, 2016 and March 22, 2016, Complainant alleged that the Agency was in breach of the settlement agreement when his supervisor did not terminate Complainant's telework agreement after the supervisor determined that Complainant was not meeting the "Meets Expectations" standard. He also alleged that he was not properly reassigned, because his supervisor had not reviewed the new position description with him. Complainant seeks to have the Agreement invalidated, arguing that the Agency negotiated the Agreement in bad faith, and asks that his complaint be reinstated.2 Complainant stated that he has no intention of returning the money.
In its FAD, the Agency determined that it had not breached the Agreement and concluded that management complied with the terms of the Settlement Agreement. The Agency reasoned that Paragraph 13 of the Settlement Agreement did not require the Agency to remove Complainant from telework, even though his performance had fallen below the "ME" level.
The Agency also found that Complainant had been "properly reassigned," because the Settlement Agreement does not contain a provision requiring the supervisor to review the new PD with Complainant in order to effectuate his reassignment. The Agency also noted that Complainant was provided a copy of the position description on November 2, 2015. The Agency found no evidence of bad faith and found that it was in compliance with the Agreement.
This appeal followed.
On appeal, Complainant argues that "there are credibility issues in the record which can only be reconciled by a hearing with direct examining of the witnesses." He argues that management officials have continued using the performance management system to harass Complainant and created a performance plan for 2016 that was designed for the Complainant to fail and had nothing to do with his position description.
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. There was nothing in the Agreement that required the Agency to terminate the telework agreement if Complainant fell below the "Meets Expectations" standard. The Agreement only specified that Complainant understands that he must maintain a rating of "Meets Expectations" and would coordinate his schedule with his supervisor. There is also nothing in the Agreement that required the supervisor to review the position description as a prerequisite to reassigning Complainant.
To the extent that Complainant is complaining about any new incidents of alleged discrimination after the signing of the Agreement, he should contact the EEO Counselor to present his claims.
For all of these reasons, however, we find that Complainant has not shown that the Agency breached the Agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision, finding no breach.
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 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. 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 3, 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 submitted prior breach claims, which were the subject of two other EEOC Appeals, EEOC Appeal 0120160446 and EEOC Appeal 0120161311. In both, OFO found that the Agency did not breach the Agreement.
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