0120111979
11-05-2012
Jorge Rios-Ortega, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Logistics Agency), Agency.
Jorge Rios-Ortega,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 0120111979
Agency No. DLAR091054
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated March 21, 2011, 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 Customer Account Specialist at the Agency's Defense Supply Center facility in Richmond, Virginia. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On September 17, 2009, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(2) Complainant is no longer working under . . ., the immediate supervisor for whom he worked at the time he filed this complaint. The Agency understands that Complainant will be seeking a lateral position that is not under [another named supervisor's] supervision, and that he prefers to find a lateral position that is outside of [Customer Operations]. The Agency agrees to support Complainant's efforts to secure a lateral position. Complainant agrees to alert [Management Official 1] as to any lateral positions for which he is qualified. Should [Management Official 1] learn of any positions for which Complainant is qualified, he will tell Complainant of such positions. So long as Complainant's performance does not suffer, [Management Official 1] agrees to recommend Complainant for any lateral positions for which he is qualified.
(4) The Agency agrees to conduct an anonymous culture survey within the Army division of the QA directorate at DSCR. The survey will be anonymous and will inform employees of such. The survey will inform participants that no employees under [Management Official 1] will be informed of the specific survey results. [Management Offical 1] shall only offer general information to those employees below his command. This requirement is to encourage employees to participate in the survey and to avoid any fears they may have if their immediate supervisors have access to their specific comments. Employees will not be asked to identify their grades. Employees will be asked questions that may otherwise identify them (i.e., their national origin, race, etc.) Each employee will have to choose whether or not to answer such questions. (The survey will be geared toward determining whether or not promotion potential, awards and professional development are tied to performance and/or to illegal discrimination. The questions asked of the employees will be directed toward this purpose.) Employees will also be asked questions about whether or not their supervisor upholds EEO standards and/or whether or not their division needs EEO training. The goal is to have this survey developed and received by employees within ninety (90) days of the dale of this Agreement. The Agency cannot guarantee that all targeted employees will participate in the survey. The Agency cannot guarantee that survey results will be conclusive if employees choose to disregard questions that may otherwise identify them (i.e., a question asking about an employee's national origin.) Should the results contain negative or improper findings, the Agency will take appropriate corrective measures to address such findings within a reasonable amount of time. Complainant understands that the Agency cannot inform him of the extent of any corrective measures that may be taken.
On January 15, 2010, the parties agreed to amend the Agreement by changing the fourth paragraph of the Agreement. In the introduction to the amendment, the parties stated:
THEREFORE, the parties have agreed to settle this matter according to the terms stated in the Settlement Agreement dated September 17, 2009, except for the FOURTH Paragraph listed under "Terms and Conditions". The FOURTH Paragraph contained in this Addendum shall take the place of the FOURTH paragraph of the September 17, 2009 Agreement. All other terms shall remain in full force and effect.
(Capitalizations in original.)
The fourth paragraph was changed to the following:
(4) The Agency agrees to conduct an anonymous culture survey within the Army division of the QA directorate at DSCR. The Agency will attempt to offer the opportunity to take the survey to DSCR employees who were in the Army division of the QA directorate as of September 17, 2009 as well as those employees who are in the QA directorate as of the date the survey is administered. The survey will be anonymous and will inform employees of such. The AFGE Council 169 (Union) and the EEO Office may receive copies of the results. The survey instructions will inform participants that no employees under [Management Official 1] will be informed of the specific survey results. [Management Official 1] shall only offer general information to those employees below his command. This requirement is to encourage employees to participate in the survey and to avoid any fears they may have if their immediate supervisors have access to their specific comments. Employees will be asked questions that may identify them (i.e., their grade, pay level, sex, national origin, race, etc.). Complainant wishes for each employee to have the choice as to whether or not to answer such questions. To accommodate this request of Complainant, the survey will likely have to be a written survey instead of an electronic survey. The survey will be geared toward determining whether or not promotion potential awards and professional development are tied to performance and/or to illegal discrimination. The questions asked of the employees will be directed toward this purpose. Employees will also be asked questions about whether or not their supervisor upholds EEO standards and/or whether or not their division needs EEO training. The goal is to have this survey developed so that employees may take it within the first Sixty (60) days of the year 2010. Complainant understands that the Agency must obtain permission from the Union and/or Headquarters before administering any survey to employees. The Agency cannot guarantee that all targeted employees will participate in the survey. The Agency cannot guarantee that survey results will be conclusive if employees choose to disregard certain questions. Should the results contain negative or improper findings, the Agency will take appropriate corrective measures to address such findings within a reasonable amount of time. Complainant understands that the Agency cannot inform him of the extent of any corrective measures that may be taken.
On January 21, 2011, Complainant emailed management alleging that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that on or about October 27, 2009 he notified management of his interest in the lateral position Supply Chain Point of Contact under announcement DSCR-09-3823, GS-0301-12, but that "no lateral position materialized as a result of this referral." Complainant further alleged that on or about September 2010, [Management Official 1] breached the agreement when he transferred three employees to positions in the Business Process Support Directorate, Order Fulfillment Division, without notifying Complainant of these positions. Complainant also listed four Supply System Analyst Positions for which he said he was "rated qualified and referred for job interviews." Finally, Complainant alleged that the Agency leadership showed an "unwillingness to comply with the terms and condition [sic] of this agreement by failing to meet the timeline to administer a cultural survey as outlined in" the fourth paragraph of the Agreement. Complainant indicated that in order to comply with the Agreement, the survey should have been completed by December 16, 2009.
In its March 21, 2011 FAD, the Agency concluded it had not breached the Agreement. The Agency first noted that, contrary to Complainant's breach allegation, the Agreement did not state that Management Official 1 had the authority to transfer Complainant but instead it stated that the Agency agreed to support Complainant's efforts to secure a lateral position and that Management Official 1 agreed to recommend Complainant for any positions for which he was qualified. The Agency found that Agency officials had supported Complainant's efforts to secure a lateral position, and that Management Official 1 had recommended Complainant for two positions. The Agency further found that Complainant had been placed in a one-year assignment to the Business Process Support Directorate but that management at that organization declined to keep complainant on a permanent basis. With regard to the three employees transferred to the Business Process Support Directorate, Order Fulfillment Division, the Agency pointed out that Complainant had already been assigned to that Division at the time.
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).
With regard to the Complainant's breach allegation that "no lateral position materialized as a result of" the October 2009 referral to the Supply Chain Point of Contact position under announcement DSCR-09-3823, GS-0301-12, we find that the Agreement states only that the Agency agreed to "support Complainant's efforts to secure a lateral position" and that Management Official 1 agreed to tell Complainant of any positions for which he was qualified, but did not state that Complainant was guaranteed a position. Accordingly we find no breach of the Agreement under this allegation.
With regard to the three employees transferred to the Business Process Support Directorate, Order Fulfillment Division, Complainant argues on appeal1 that simply because he was already on a temporary detail in that Division, that did not absolve the Agency of its responsibilities under the Agreement to transfer him to that Division on a permanent basis. The Agency argues that under the terms of the Agreement, only Management Official 1 was responsible for notifying Complainant of positions for which he was qualified and that the transfers in question were not carried out by him and he was not made aware of these positions. The Agency argues that a Human Resources Specialist sent a notice seeking volunteers for the transfers to two other individuals but not to Management Official 1, and because Complainant was already on a detail at the Order Fulfillment Division, "he was not identified by the Human Resources Department as being eligible for the transfer." Agency Brief, p. 4. The Agency maintains that the two individuals who received the transfer-volunteer notice were not party to the Agreement and were under no obligation notify Complainant of these positions. The Agency argues further that the Agreement clearly states that it was Management Official 1 who had the responsibility to notify Complainant of any positions, not "the Agency" or others in the Agency. The Agency argues that Management Official 1:
was not responsible for determining [Complainant's] eligibility for the three lateral transfers that were available in June 2010; and he had no reason to believe that [Complainant] was eligible for the reassignment being offered. Additionally, since he had no say in determining which employees were eligible, [Management Official 1] was free to assume that decisions on position elimination and transfer eligibility were functions of the Agency's Human Resources Department.
Id.
Complainant has not shown that Management Official 1 was aware of the three positions, and since the Agreement states that he was the person responsible for notifying Complainant of any positions, we find that the fact that others who were not party to the Agreement failed to notify Complainant does not constitute a breach.
With regard to Complainant's argument that the Agency breached the Agreement by failing to complete the cultural survey by December 16, 2009, we note that by its terms, the original Agreement did not indicate that the 90-day period was a hard deadline but instead stated that it was merely a "goal." Furthermore, Complainant agreed to amend this goal by signing the January 15, 2010 amendment, which Complainant agreed would "take the place of" the earlier goal. The amended portion stated that the new goal was to have the survey "developed so that employees may take it within the first Sixty (60) days of the year 2010." Complainant does not appear to dispute the Agency's finding that the survey was developed and administered to employees on February 25, 2010. Since Complainant agreed to the extension, he may not claim that the Agency breached the Agreement when the Agency complied with the extended date.
For the above reasons we find that Complainant has not met his burden of showing that the Agency breached the Agreement, and we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 5, 2012
__________________
Date
1 Complainant submitted two Appellate Briefs, dated April 19, and June 7, 2011 respectively. We note, however, that our regulations do not contemplate the submission of multiple briefs. See 29 C.F.R. � 1614.403(d). Accordingly, we decline to accept Complainant's second Appellate Brief.
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0120111979
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111979