0120182431
09-20-2018
Horacio M,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Horacio M,1
Complainant,
v.
Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.
Appeal No. 0120182431
Agency No. 54-2018-00005
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated August 24, 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 was a former employee, who had worked as a Financial Management Specialist at the Agency's National Oceanic and Atmospheric Administration (NOAA), National Marine Fisheries facility in Washington, DC.
On November 22, 2017, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(3c) DISABILITY APPLICATION. In the event that Employee voluntarily elects to apply for disability retirement through OPM, the Agency agrees to have an appropriate official complete and sign the Standard Form 3112B (Supervisor's Statement) within 60 days from the execution of this agreement. An appropriate official will also complete and sign the Standard Form 3112D (Agency Certification of Reassignment and Accommodation Efforts) and the Standard Form 3112E (Disability Retirement Application Checklist) within 60 days from the execution of this agreement; and.
(9) TOTALITY OF AGREEMENT. This Agreement constitutes a fair, full, and final resolution of all aspects of these allegations and contains all terms and conditions o the Agreement between the parties. No other conditions or assurances, expressed or implied, are included.
On January 30, 2018, Complainant's representative sent Complainant's Application for FERS Disability Retirement Benefits directly to the Office of Personnel Management (OPM). Complainant did not inform the Agency that he had elected to apply to OPM directly and did not provide a copy of his disability retirement application to the Agency. The Agency did not become aware of Complainant's disability retirement application until March 2018. On or about June 5, 2018, the Agency submitted the required Standard Forms 3112B, 3112D and 3112E to OPM.
By letter to the Agency dated April 2, 2018, 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 supply to OPM a Form SF-50 denoting his separation from service and failed to complete its portion of the disability retirement application SF 3112B and SF 3112D.
Complainant appealed to the Commission, after receiving no response to his breach claim. The Agency did respond to his appeal. The Agency did not issue a decision.
In its opposition to the appeal, the Agency maintained that it had not breached the Agreement. The Agency reasoned that the Agreement provided that the Agency will submit the forms "in the event that Complainant voluntarily elects to apply for disability retirement. Further, the Agency stated that the Agreement implicitly contemplates that Complainant will inform the Agency that he has submitted an application, so that the Agency could then submit the forms required by the Agreement. The Agency also noted that the Agency submitted the required paperwork to OPM when it learned that Complainant had submitted his disability retirement application. We construe the Agency's reply as its final decision on this matter.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency failed to comply with the requirement to submit the paperwork by January 30, 2018, and because the Agency had not submitted the paperwork, OPM had not begun the processing of Complainant's disability retirement application.
In response, the Agency maintains that it has already provided all of the paperwork and that it is not responsible for the delay in compliance, because Complainant failed to notify the Agency that he had filed his retirement application with OPM. The Agency contends the appeal was frivolous, and that it had complied by the time the appeal was filed.
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 was valid and binding on both parties.
In the instant case, the Agreement required Agency action that was contingent on Complainant first voluntarily electing to apply for disability retirement through OPM. Thereafter, the Agency was obligated to have an appropriate official complete and sign the Standard Form 3112B (Supervisor's Statement). We agree that the Agency's obligation was not triggered until it knew that Complainant had filed directly with OPM. Complainant did not notify the Agency that he had applied for disability retirement directly to OPM, when he submitted his retirement application. We find that the Agency was not aware that he had filed directly until the Agency was notified of the breach claim. Thereafter, the record shows that the Agency submitted the necessary paperwork to OPM.
To the extent that there may have been a breach because the paperwork was not submitted within 60 days of the execution of this agreement, we find that the Agency cured the breach when it submitted the paperwork, after receiving notice of the breach.
CONCLUSION
Accordingly, we AFFIRM the Agency's determination that it did not breach the Agreement.
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
September 20, 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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