Felton Z.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Oct 11, 2018

0120172385 (E.E.O.C. Oct. 11, 2018)

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

Felton Z.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.

Appeal Nos. 0120172385
0120181028

Agency No. APHIS-2013-00819

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision (FAD) by the Agency dated May 31, 2017, 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 was an Environmental Protection
Specialist, GS-0028-13, at the Agency’s work facility in Riverdale, Maryland. Believing that the
Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO
Counselor to initiate the EEO complaint process. On September 18, 2013, Complainant and the
Agency entered into a settlement agreement to resolve the matter. The settlement agreement
provided, in pertinent part, that:

(2) That the Agency will not issue the Letter of Reprimand that Complainant’s current
first line supervisor discussed with him on July 30, 2013. Accordingly, this Letter
of Reprimand will not be placed in Complainant’s Official Personnel File (OPF).
The Agency will expunge the (non-issued) Letter of Reprimand (including drafts)
from any supervisory desk file/supervisory performance file concerning

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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Complainant, and provide a statement or documentation that this action to
Complainant within 30 calendar days after the effective date of this Agreement.
The bases of this (non-issued) Letter of Reprimand may not be considered as
progressive discipline in any future administrative actions against Complainant.
However, this Agreement does not prevent the Agency from taking future,
appropriate administrative action against Complainant in accordance with all
generally applicable laws, regulations, and policies, including performance and
conduct requirements, under the direction of the Agency.

By letter to the Agency dated April 19, 2017, Complainant alleged that the Agency was in breach
of the aforementioned provision of settlement agreement. Complainant stated that he had filed
another EEO complaint and that during the discovery process of this second complaint the Agency
produced documents in response to his discovery requests. According to Complainant, the Agency
produced documents that included the non-issued Letter of Reprimand, an “evidence file”
concerning the non-issued Letter of Reprimand, and e-mail correspondence referencing the non-
issued Letter of Reprimand. Complainant claimed that the Agency did not comply with the
settlement agreement by failing to expunge the Letter of Reprimand, and he requested that the
Agency specifically implement its terms.

By letter dated May 31, 2017, the Agency wrote a letter indicating to Complainant that it was in
compliance with the settlement agreement. The Agency stated that the Letter of Reprimand has
been a mute issue since August 2013 and that it surmises the documents in question were somehow
inadvertently retained. The Agency stated that it has not taken any progressive discipline actions
over the past four years against Complainant based upon the Letter of Reprimand, and therefore
Complainant suffered no harm due to the documents in question.

On July 5, 2017, Complainant filed the instant appeal with the Commission in response to this
letter.

In its final decision dated December 22, 2017, the Agency determined that it had breached the
settlement agreement. The Agency stated that although it appeared to have made efforts to
expunge the non-issued Letter of Reprimand, it ultimately failed to do so. Further, the Agency
determined that it saw no evidence that it transmitted any statement or documentation to
Complainant that the expungement occurred, as required by the terms of the agreement. The
Agency stated that it failed to properly ensure all documents relating to the non-issued Letter of
Reprimand, including drafts, were completely expunged. The Agency stated that it would notify
Complainant of his right to choose between specific performance of the terms of the settlement
agreement or reinstatement of his underlying EEO complaint.

On January 25, 2018, the Agency issued a final decision wherein it rescinded its previous final
decision. The Agency stated that at the time it issued the previous decision, it was unaware that
Complainant had an appeal concerning his breach claim pending before the Commission. The
Agency stated that it therefore lacked jurisdiction to adjudicate the complaint.
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Thereafter, Complainant filed an appeal with the Commission that was docketed as EEOC Appeal
No. 0120181028. In light of the fact that both EEOC Appeal No. 0120172385 and EEOC Appeal
No. 0120181028 concern the same alleged breach of the settlement agreement, we are
consolidating the two appeals within this decision.

CONTENTIONS ON APPEAL

On appeal, Complainant requests that the Agency immediately expunge the Letter of Reprimand
and associated documents referencing or supporting the Letter of Reprimand, as specified in the
settlement agreement, and that the Agency provide him with confirmation. Complainant also
requests reasonable attorney fees and expenses with regard to attempting to remedy the Agency’s
noncompliance.

In response, the Agency asserts that Complainant’s Supervisor did not issue the Letter of
Reprimand to Complainant. The Agency states that the Supervisor also deleted all copies of the
draft letter of reprimand from her supervisory performance and desk files. The Agency
acknowledges that the Supervisor had a copy of the draft Letter of Reprimand in her e-mail.
According to the Agency, the settlement agreement did not require the Agency to remove copies
of the draft Letter of Reprimand from all e-mails or electronic files. The Agency notes that the
agreement referred to the Supervisor’s desk files, performance files and Complainant’s Official
Personnel File. The Agency maintains that the Supervisor has since deleted all e-mails which
included the draft Letter of Reprimand. The Agency states that in response to Complainant’s
Document Request in another complaint, it provided a copy of the draft Letter of Reprimand which
was part of the Supervisor’s electronic files, not her desk files.

The Agency asserts that it did not breach the settlement agreement because the Supervisor did not
keep a copy of the draft Letter of Reprimand in either her desk or performance files. The Agency
argues that assuming arguendo that it breached the agreement, it has since complied with the
agreement in that the Supervisor has deleted the draft Letter of Reprimand from her electronic
files. The Agency maintains that Complainant was not harmed as the only people who received a
copy of the draft Letter of Reprimand were Complainant, his attorney and the Agency
representative. The Agency states that it has specifically performed the agreement and there is no
further relief available to Complainant.

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.
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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, initially we observe that the Agency acted appropriately in rescinding its final
decision dated December 22, 2017. Complainant filed an appeal with the Commission on July 5,
2017, pertaining to his claim that the Agency breached the settlement agreement. Therefore, the
Agency lacked jurisdiction to issue the final decision dated December 22, 2017.

As to the merits of Complainant’s breach claim, we observe that the settlement agreement states
that the Agency will expunge the non-issued Letter of Reprimand, including drafts, from any
supervisory desk file/supervisory performance file concerning Complainant. The agreement did
not state that the non-issued Letter of Reprimand, including drafts, had to be removed from all e-
mails or electronic files. As such, we find that the presence of the draft Letter of Reprimand among
the e-mails did not constitute a breach of the settlement agreement. Further, to the extent that the
agreement might have been breached, the Agency cured any such breach when the Supervisor
deleted the e-mails which included the draft Letter of Reprimand.

CONCLUSION

The Agency’s determination that no breach occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)

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.
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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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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.
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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

October 11, 2018
Date