0120143009
03-18-2016
Darrin F.,1 Complainant, v. John Kerry, Secretary, Department of State, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Darrin F.,1
Complainant,
v.
John Kerry,
Secretary,
Department of State,
Agency.
Appeal No. 0120143009
Agency No. DOSF12612
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated July 31, 2014, 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 Political and Economic Officer at an unidentified 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 September 23, 2012, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(9f) lf the Complainant is not promoted by the 2013 Foreign Service Selection Board, the Department (through HR/PE) will institute a Reconstituted Board to meet by December 31, 2013, to review the Complainant's file, once his 2012 EER has been expunged and replaced with a gap memorandum, and an EER including his performance during the Pearson Program and Congressional Fellowship for the period March 15, 2013, through October 31, 2013, has been added to his personnel file.
(9g) The Department will permit the Complainant to request the recusal of the following individuals from his future Foreign Service Selection Boards, including the Reconstituted Board referenced above in Term 9f. [We have omitted the names of five individuals named in the settlement agreement]. Complainant must follow all applicable Department procedures and deadlines for recusal.
By electronic message to the Agency dated May 12, 2014, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to institute a Reconstituted Board by December 31, 2013.
In its July 31, 2014 FAD, the Agency concluded that it had substantially complied with the settlement agreement. The Agency found that "an administrative error" required the postponement of the December 31, 2013 meeting of the Reconstituted Board, that on February 24, 2014, Complainant agreed to a rescheduled Board meeting, and that the meeting was finally held in April 2014.
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).
In the instant case, we find that the Agency has not shown it complied with the settlement agreement. The FAD found that "[t]here is no evidence that the failure to institute a Reconstituted Board by December 31, 2013 would place Complainant in any worse position due to some benefit to expire by the deadline of December 31, 2013." FAD, p. 5. On appeal, Complainant does not argue that he was harmed by the delay between December 2013 and April 2014. Instead, Complainant argues that the Agency still has not complied with the terms of the settlement agreement and still remains in breach. Specifically, Complainant alleges that:
Foreign Service Officers eligible for promotion are assessed annually by two separate panels: a classwide panel and a conal panel. The classwide panel reviews and compares and ranks all officers at the same rank level based on a 5 year service history. If not promoted by the classwide panel, a conal panel is held. The conal panel compares all officers within the same specialization. A promotion means that the officer moves to the next rank. . . . The Reconstituted Board that convened on April 1, 2014 consisted of only the classwide review panel. As of the date of this appeal, the conal panel has not convened.
Complainant's Appeal Brief, pp. 1 and 4.
The record shows that after the April 1, 2014 meeting, Complainant received an electronic message dated April 24, 2014 stating "We have been notified by HR/PE that the first promotion review, the classwide review conducted on April 1, 2014 did not recommend your promotion. Per procedures that you are familiar with, the next promotion review will be by cone. Below is the proposed membership for the board for the 2013 G-11 B conal review. [The names of six individuals were provided]" Complaint File, Exhibit 8, p. 6. Complainant maintains that it is this "next promotion review" that the Agency has yet to convene. Complainant further maintains that on May 6, 2014 he took advantage of term 9g of the settlement agreement to object to two of the six proposed board members identified in the April 24, 2014 message, see id., p. 4, but "[t]o date, no response to their [sic] objections has been given and the conal board has not convened." The Agency has provided no response on appeal.
Following a review of the record we find that the Agency has breached the settlement agreement. The record shows that the Reconstituted Board consisted of two portions, a classwide and a conal review and that the Agency delayed three months in instituting the classwide review and to date has not conducted a conal review. The FAD failed to address the fact that no conal review was conducted and the Agency has not submitted a response brief challenging Complainant's claims.
Once a breach is found, as in the case herein, the remedial relief is either the reinstatement of the complaint for further processing or specific enforcement of the settlement agreement. If a Complainant's complaint is reinstated for further processing, then the parties must be returned to the status quo at the time that the parties entered into the settlement agreement, which requires that Complainant return any benefits received pursuant to the settlement agreement. See, e.g., Armour v. Department of Defense, EEOC Appeal No. 01965593 (June 24, 1997). The settlement agreement reveals that Complainant was due a monetary settlement that, if received, would have to be returned to the Agency should his complaint be reinstated. On appeal, Complainant has requested as a remedy that he be promoted, which is a remedy we are unable to order. In the alternative, Complainant requests specific enforcement of the terms of the settlement agreement.
CONCLUSION
The complaint is hereby REMANDED to the agency for further processing in accordance with the ORDER below. On remand, Complainant shall be advised that in order to reinstate his complaint, a condition precedent is the return of any benefits received through the execution of the provisions of the agreement. In view of this requirement, we therefore give Complainant the option, in accordance with the ORDER below, of either returning the benefits conferred pursuant to the agreement and reinstating the complaint, or keeping the benefits conferred pursuant to the agreement and having the agreement specifically enforced.
ORDER
The Agency is ORDERED to notify Complainant of the option to return to the status quo prior to the signing of the agreement and having his complaint reinstated, or having the terms of the agreement specifically enforced. The Agency shall notify Complainant within fifteen (15) calendar days of the date this decision becomes final. The agency shall also notify Complainant that he has fifteen (15) calendar days from the date of his receipt of the Agency's notice within which to notify the agency of her choice. Complainant shall be notified that in order to return to the status quo ante, he must return any benefits received pursuant to the settlement agreement. If Complainant elects to return to the status quo ante and returns any monies or benefits owing to the Agency, as specified above, the Agency shall resume processing the complaint from the point processing ceased. If Complainant elects not to return to the status quo ante, i.e., not to return any consideration owing the Agency, the Agency shall notify Complainant that the terms of the settlement agreement will be specifically enforced no later than ninety (90) calendar days after Complainant notifies the Agency of his decision, unless the Agency can show it has already complied with the settlement agreement by convening a conal panel review.
A copy of the Agency's notice to Complainant regarding his options, as well as a copy of either the correspondence reinstating the complaint for processing or the correspondence notifying Complainant that the terms of the settlement agreement will be specifically enforced, must be sent to the Compliance Officer, as referenced below.
ATTORNEY'S FEES (H0900)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the agency. The attorney shall submit a verified statement of fees to the agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter referred to as 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)(Supp. V 1993). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
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 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 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
March 18, 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.
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