0120181481
07-17-2018
Homer S,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Homer S,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120181481
Agency No. ARRIA15JUN02195
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated January 8, 2018, 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 compliance action, Complainant worked as a Molder at the Agency's Joint Manufacturing and Technology Center facility in Rock Island, Illinois.
On September 3, 2015, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(3e) The Agency agrees that within sixty (60) days of the date of this agreement, to take actions necessary to remove [Complainant's] September 29, 2011 letter of reprimand from his EOPF, the CPAC disciplinary file pertaining to [Complaint] and from the RIA-JMTC supervisor file pertaining to [Complainant];
(4a) Complainant agrees that his signature on this Agreement constitutes withdrawal of complaint ARRIA15JUN02195 in its entirety, with prejudice;
(4b) Complainant agrees that he voluntarily waives any rights that he may have to pursue further administrative or judicial action in any forum against the Agency or its employees regarding the matters raised in this complainant and all other matters arising from his employment at Rock Island Arsenal, Joint Manufacturing and Technology Center as of the date of his signature;
(4c) Complainant agrees that any other existing complaints, appeals and litigation arising from his employment ... as of the date of his signature...shall[be]withdrawn, with prejudice; and
(8) Complainant agrees, if the Complainant believes that the Agency has failed to comply with the terms of this Agreement, he shall notify the Director of EEO Compliance and Complaints Review (EEOCCR)... in writing, of the alleged noncompliance within 30 calendar days of when he knew or should have known of the alleged noncompliance.
On April 25, 2017, Complainant was issued a proposal to suspend him for 14 days without pay. The 2017 proposal referenced a July 9, 2015 decision to suspend him for five days. The Agency did not notify Complainant of his right to file an EEO complaint when it issued the April 25, 2017 Memorandum proposing his suspension.
The 2017 proposal became a final action on May 23, 2017. By letter to the Agency dated June 2, 2017, 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 failed to cancel the 2015 suspension.
The record reflects that during the processing of Complainant's EEO case on a different matter, the Agency asked for a global settlement of all outstanding issues. The Agreement before us also contains a provision that says that Complainant agrees to the settlement of all of the issues in complaint ARRIA15JUN02195 and "any other existing complaints, appeals and litigation arising from his employment at Rock Island Arsenal... as of the date of his signature." The Agreement only expressly referenced, and required, the removal of the September 29, 2011 letter of reprimand.
Agency Decision
The Agency concluded that it complied with the Agreement. The Agency reasoned that the Agreement does not contain terms cancelling his 2015 suspension or restricting use of the suspension in future discipline proposals. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that he timely filed his breach claim when he made contact with the EEO Counselor on June 2, 2017. Complainant asserts that his supervisor violated the Agreement when he relied on a prior disciplinary action to enhance the penalty in a new disciplinary proposal.
The Agency contends that the Agency did not breach the Agreement, because the Agreement does not contain any terms addressing Complainant's 2015 suspension or prohibiting the use of the 2015 suspension in a future discipline action.
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 that the Agreement is valid, binding and properly before us on appeal. The Agency did not show that the breach claim was untimely filed.
In the instant case, the Agreement required the Agency to take actions to remove one identified [September 29, 2011] letter of reprimand from Complainant's records. The record shows that the Agency took the requisite steps to remove the September 29, 2011 letter of record. Moreover, Complainant acknowledges that the Agency removed the September 29, 2011 reprimand. Complainant now argues that the Agreement precluded reliance on a July 9, 2015 decision to suspend him for five days as support for a subsequent a 2017 discipline proposal.
Because the subject September 3, 2015 Agreement did not specify or reference Complainant's 2015 suspension, but it did reference the earlier suspension, we find that Complainant failed to meet his burden of showing that the Agency breached the Agreement when it later relied on the 2015 suspension. That 2015 suspension was not specified in the Agreement. Moreover, the Agreement did state that Complainant intended to settle all "other existing" claims arising out of his employment as of the date of his signature on the Agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision, finding no breach.
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 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. 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. 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
July 17, 2018
__________________
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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