0120160134
03-10-2016
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. 0120160134
Agency No. HS-ICE-00034-2014
DECISION
Complainant filed a timely appeal with this Commission from the Agency's August 31, 2015 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 complaint, Complainant worked as a Special Agent at the Agency's "Homeland Security Investigations (HIS) McAllen HIDTA/ Financial Unit" 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:
(2a) the Agency agrees "the Special Agent in Charge (SAC), San Antonio Office, will support the Complainant's request for a Self-Funded Lateral Reassignment (SFLR). If and when selected by another office for the SFLR program, the SAC (San Antonio) will concur with that selection."
(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 May of 2015, Complainant requested that he be selected by another office under the SFLR program. He learned that the Agency offered SFLR positions in San Antonio and Austin to other personnel, but not to him. By letter to the Agency dated June 3, 2015, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency implement its terms. Specifically, Complainant alleged that the Agency breached the Agreement by not supporting his request by offering him a lateral reassignment.
The record shows that a Special Agent in Charge stated in an email that the "SFLR for [Complainant] was signed on July 10, 2014 and submitted to Headquarters via the internal announcement vehicle," but "Complainant was not selected by another office." There was no notification from the Headquarters that Complainant had been selected by another office as of the time of his complaint. Effective July 25, 2015, Complainant transferred to a different agency and is no longer an employee.
In its August 31, 2015 FAD, the Agency concluded that there was no breach. The Agency reasoned that it had complied as evidenced by an email that was sent by a SAC, stating "the SFLR for [Complainant] was submitted to Headquarters on July 15, 2014."
CONTENTIONS ON APPEAL
Complainant alleges that the Agency engaged in trickery by referring to matters pertinent to an earlier compliance issue, and not the one that he alleged occurred in May of 2015. He states that the "HIS San Antonio" breached the contract by failing to support his SFLR request and this is "yet another example of retaliation." The Agency maintains that it complied and the Agency references an earlier decision (Complainant v. Department of Homeland Security - DHS Immigration and Customs Enforcement, EEOC Appeal 0120143233 (February 25, 2015) in which this Office concluded that the agreement had not been breached.
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 valid and binding.
In the instant case, the Agreement required that the SAC support Complainant's selection if, and when, Complainant was selected by another office. The record does not show that Complainant was selected by another office or that the SAC had not supported Complainant's 2015 request. Moreover, because Complainant left the employ of the Agency, it would not be feasible to grant the specific performance which Complainant requested.
CONCLUSION
For these reasons, we find that Complainant failed to show that the Agency breached the Agreement. We AFFIRM the Agency's Final 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 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 10, 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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