Emanuel W.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Sep 7, 2016

0120143077 (E.E.O.C. Sep. 7, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Emanuel W.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security,
Agency.

Appeal No. 0120143077

Agency Nos. HS-HQ-21832-2012 & HS-HQ-22764-2012

DECISION

Complainant filed a timely appeal with this Commission from a final decision by the Agency
dated August 25, 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. We find that the appeal has been timely filed and
accept it for de novo review. For the reasons discussed below, the Commission AFFIRMs the
Agency’s final decision.

BACKGROUND

Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an
Agency EEO Counselor to initiate the EEO complaint process and subsequently filed the
above-referenced formal complaints. On January 29, 2013, Complainant and the Agency
entered into a settlement agreement to resolve the matter. The settlement agreement provided,
as summarized in pertinent part, that:

(3a) The Agency would offer Complainant a GS-14 position at its regional office for
Region 7 in Grand Prairie, Texas, under a specifically named individual as his
immediate supervisor with the understanding that there were no guarantees that
this individual would remain Complainant’s supervisor.

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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(3b) Complainant would retain his current title of Supervisory Special Agent

***

(3e) Complainant would be allowed to retain the following equipment that he
currently possesses: a laptop computer; two monitors; printer; external
keyboard; camera; GPS; GOV-2010 Ford Explorer (the radio may be
reprogrammed); two Glock pistols; Remington 870 shotgun; body armor;
uniforms; a hand-held radio (provided by Region 7)

***

(3h) Complainant will be domiciled in Region 7’s regional office, located in Grand
Prairie, Texas, and while the Agency could not guarantee GS-14 employees an
office, the office space provided to Complainant would generally be equal in
overall square footage and access to necessary facilities and equipment provided
to other GS-14 employees.

(3i) The Agency agrees to provide $24,000 lump sum subject to any applicable taxes
and withholdings toward Complainant’s relocation costs.

***
By letter to the Agency dated July 11, 2014, Complainant alleged that the Agency was in
breach of the settlement agreement, and requested that the Agency specifically implement its
terms. Without identifying specific provisions in the agreement, Complainant appears to be
alleging that the Agency failed to comply with various provisions of Clause (3). In its August
25, 2014 final decision the Agency concluded that it had substantially complied with all the
provisions of the agreement.

ANALYSIS AND FINDINGS

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. Dept. of Defense, 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. Dept. of Veterans Affairs, EEOC Request No. 05900795 (Aug. 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 Service, EEOC Request No. 05910787 (Dec. 2, 1991). This rule states that if the
writing appears to be plain and unambiguous on its face, its meaning must be determined from
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the four corners of the instrument without resort to extrinsic evidence of any nature. Williams
v. U.S. Postal Service, EEOC Appeal No. 0120122065 (Aug. 24, 2012).

The ultimate issue in this case is whether the Agency complied with the terms of the settlement
agreement. The Agency is held to the standard of “substantial compliance.” Substantial
compliance will be found even if the Agency commits a technical breach in good faith that does
not undermine the purpose or effect of the agreement, or if the Agency fails to satisfy a
specified time frame when all required actions were subsequently completed. Monroe C. v.
Dept. of Defense – Defense Logistics Agency, EEOC Appeal No. 0120161559 (July 29,
2016). It is Complainant’s burden to demonstrate the Agency’s noncompliance with the
settlement agreement by a preponderance of the evidence. Reynolds v. Dept. of Agriculture,
EEOC Appeal No. 01A52215 (Jul. 28, 2005).

At the outset, Complainant alleges that he had been assigned to Region 7 since March 21,
2014, but had not been assigned or offered any suitable office space, purportedly in violation
of Cause (3h). The Agency responded that it had been anticipating several vacancies on the
fourth and fifth floors of its facility in Grand Prairie, but that those vacancies had been delayed
when the occupants of those offices did not relocate as expected. The Agency also stated that
Complainant had ultimately been provided with an office on the fourth floor that was larger
than that normally provided to GS-14 employees, and that in the interim, Complainant had
been allowed to telework. We find that the delay in providing Complainant with his office was
not a breach of Clause (3h).

Next, Complainant alleges that the Agency failed to provide him with a hand-held radio or
program the radio in his vehicle, in violation of Clause (3e). The Agency reported that on July
22, 2014, it provided Complainant with the contact information for its Radio Technician and
Risk Management Branch Chief, notifying Complainant that these individuals were available to
provide assistance. It also reported that on July 24th, it advised Complainant that it had a hand-
held radio available for him and would be ready to reprogram the radio in his car upon his
return from travel. Accordingly, we find no violation of Clause (3e).

Finally, Complainant raises a number of matters that were not specifically addressed in the
settlement agreement, including not being given a designated radio call-in sign; not having the
license plates on his government vehicle changed from Missouri to Texas; not having his
accountable property transferred from Region 6 to Region 7; and not receiving notifications
from Region 7 to attend in-service training. The Agency correctly points out that there are no
provisions within the settlement agreement that require the Agency to provide any of these
things. As to his contention regarding accountable property, what Complainant characterized as
a failure to comply was only a delay. Concerning training, the Agency responded that no one
in the 1811 series, in which Complainant’s position was located, had been given training since
Complainant located to Region 7.

After reviewing the settlement agreement and Complainant’s breach allegations, we find that
Complainant has not met his burden of proof regarding noncompliance with the agreement.
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CONCLUSION

Based upon the record and for the foregoing reasons, the Commission AFFIRMS the Agency’s
final decision.

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 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. 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”
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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

September 7, 2016
Date