0120150973
04-06-2016
Frank R.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Frank R.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120150973
Agency No. HS-ICE-00034-2014
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated December 5, 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 Special Agent at the Agency's Immigration and Customs Enforcement facility in McAllen, Texas.
On July 8, 2014, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(2b) The Agency agrees to provide the Complainant with training and / or shadowing in the Financial Crimes Investigations unit and / or send him TDY to gain experience in one of the units that covers the Financial Investigations programmatic area for the next 12 months;
(2c) Complainant will be assigned to the Financial Crimes Investigation unit, effective July 9, 2014;
(2d) No later than 5 days from the signing of this Agreement, the Agency will instruct GS [named Group Supervisor] to limit contact with the Complainant to business-related contact only and, upon Complainant's transfer, to route contact with the Complainant through Complainant's current supervisor when practical; and any subsequent contact will not constitute a breach of this Agreement; and
(5) This Agreement constitutes the full and complete agreement between Complainant and the Agency and supersedes all prior oral and written agreements between the parties with respect to matters settled in this Agreement.
In an email dated July 17, 2014, the Assistant Special Agent in Charge (ASAC) confirmed that Complainant was reassigned to the Financial HIDTA group. The Financial HIDTA group's primary responsibility is to investigate financial crimes and is the only group authorized to do so.
The claim raised in 2d was previously decided by the Agency in the Breach Decision, dated September 10, 2014. On July 15, 2014, the named Group Supervisor emailed Complainant directly without going through Complainant's immediate supervisor. The email was a business related email regarding a customer trying to obtain a U-Visa certification. On that same date, the Group Supervisor walked by Complainant's cubicle and asked, "What's up?"
Complainant stated that, on August 21, 2014, he was notified that he would be the acting Group Supervisor to cover for another supervisor. Later that day, Complainant learned that the named Group Supervisor was designated to be the acting Program Manager. Complainant states that he was therefore "forced to report to the Acting Program Manager [named Group Supervisor] when [the] settlement agreement stipulates that [the named Group Supervisor] should have no contact with me, unless is it operationally necessary." Complainant states that during the time he served as acting Group Supervisor, Complainant received three emails from the Group Supervisor.
The Agency issued a prior decision (0120143233), finding no breach with regard to the claims 2b through 2d. In its September 10, 2014 FAD, the DHS Office of Civil Rights and Civil Liberties (OCRCL) found that no breach of the settlement agreement had occurred with regard to paragraph 2d of the Agreement. The Agency reasoned that the Agreement does not prohibit "all" contact with Complainant by the Group Supervisor and that the Agency fulfilled its obligation under the terms of the Agreement when the Group Supervisor was instructed to limit his contact. We also note that OFO rendered its decision with regard to Complainant's earlier appeal, which was docketed as 0120143233, on February 25, 2015.
By email to the Agency dated September 19, 2014, Complainant alleged that the Agency was in breach of the settlement agreement provisions, and requested that the Agency implement its terms. Specifically, Complainant alleged that ICE failed to provide him with continual training and / or shadowing in the Financial Crimes Investigations Unit for 12 month and did not assign Complainant to the Financial Crimes Investigation Unit. Meanwhile, also on September 19, 2014, Complainant submitted this appeal directly to this Commission on the same date.
In a December 5, 2014 decision, the Agency found that Complainant previously filed a breach allegation with the same Agency number on provision 2d of the Settlement Agreement, regarding the "no contact" clause. With regard to the claim that he was not provided constant training, the Agency reasoned that the Agreement did not specify the frequency of the required training or shadowing. The Agency also noted the TDY assignments that were provided to Complainant. The Agency concluded that "Complainant failed to prove that ICE breached the settlement agreement entered into with Complainant." This appeal followed.
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 Agreement was valid and binding.
We also find that Complainant did not show that the Agency breached the Agreement paragraphs 2b, 2c or 2d, which are the subject of the instant appeal. There was no requirement that the Agency must prevent all contact between Complainant and the Group Supervisor. The Agreement stated that any subsequent contact "will not constitute a breach of this Agreement." Moreover, the Agreement expressly stated that, after issuing the instruction to the Group Supervisor to refrain from non-business contact, the Agency met its obligation. There was no showing that the emails were not business related.
We also find that the Agency complied with the terms of the Agreement, because the record shows that there is only one financial group to which Complainant was assigned and received training. The Agreement did not require continuous training. For these reasons, we find that the Agency did not breach the Agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's Breach 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 6, 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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