0120161062
04-19-2016
Joshua F.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Joshua F.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120161062
Agency No. 9BC110077
DECISION
Complainant timely appealed to this Commission from the Agency's December 14, 2015 decision, which found itself in compliance with the settlement agreement into which the parties entered. See 29 C.F.R. �� 1614.402, 1614.504(b), and 1614.405
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, GS-0343-12 Step 4 at the Agency's HQ Air Combat Command Directorate of Logistics at Joint Base Langley-Eustis, Virginia.
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. The matter progressed so that it was pending a hearing before an EEOC Administrative Judge when, on December 18, 2013, Complainant and the Agency entered into a settlement agreement ("the Agreement") to resolve the matter. EEOC Case No. 430-2012-00106X (Jan. 15, 2014) (dismissed with prejudice pursuant to the Agreement) By letter to the Agency dated November 20, 2015, Complainant alleged that the Agency was in breach of the Agreement, and requested that the Agency specifically implement its terms.
Specifically, Complainant alleges breach of Paragraphs B and D within Section II of the Agreement; which require the Agency:
II.B. To laterally transfer Complainant from his position as Transportation Specialist GS-2101-12 step 4. Located in the Logistics Readiness Division, 733 Mission Support Group, 633 Air Base Wing Joint Base Langley-Eustis, VA to the position of Program Analyst, GS-0343-12 Step 4 located at HQ Air Combat Command, Directorate of Logistics effective January 6, 2014
II.D. To provide Complainant with the opportunity to complete levels 1, 2, and 3 of the certification for Life Cycle Logistics or levels 1, 2, and 3 of the Program Management Certification within a period of 36 months from the date he begins working as a Program Analyst, GS-0343-12 Step 4 located at HQ Air Combat Command, Directorate of Logistics. Complainant's Supervisor ["S1"] will have discretion on which of the two certifications will be provided to Complainant.
Effective January 6, 2014, the Agency laterally transferred Complainant to his current position of Program Analyst, thereby fulfilling its obligation under Paragraph B in Section II of the Agreement. Based on this effective date, in accordance with Paragraph D, Complainant would have until January 5, 2017 to complete levels 1, 2, and 3 of either the Life Cycle Logistics or the Program Management certification.
In January 2015, Complainant requested and received level 1 training for the certification in Life Cycle Logistics. In order to qualify for training on levels 2 and 3 of Life Cycle Logistics, Complainant was required to complete online coursework. From July 21, 2015 through December 1, 2015 Complainant was absent on medical leave. As of the date of the instant appeal, Complainant had not yet taken the prerequisite online coursework in order to receive the remaining levels of training. The Agency states, and Complainant did not dispute that it had not denied Complainant any request for training since his return from medical leave, and that once Complainant completed the online coursework, he could sign up for the other Life Cycle Logistics courses.
In or around July 2015, Complainant learned that as a result of a reduction in force ("RIF"), the Agency identified his Program Analyst position as "surplus" or "excess," meaning it would no longer receive funding. Complainant alleges that the Agency negotiated the Agreement in bad faith; noting that his previous position of Transportation Specialist, which, per the Agreement, he left for the Program Analyst position, was not categorized as "excess." Complainant further alleged that by categorizing his Program Analyst position as "excess" the Agency was in breach of Section II Paragraphs B and D of the Agreement. On August 25, 2015, the Agency issued a response, finding that no breach occurred. Specifically, the Agency pointed out that Complainant's employee status as a Program Analyst had not changed, and he still had over a year, per the Agreement, to complete the training discussed in Paragraph D.
On November 4, 2015, the president of Complainant's union received an updated "surplus list" from Agency management containing names of 61 union employees (out of 100 total) at the Joint Base Langley-Eustis who had positions that the Agency identified as "excess" or "surplus." Complainant's name was on the list, so on November 5, 2015, he spoke with his supervisor, who confirmed that Complainant's Program Analyst position had been categorized as "excess" and would be eliminated. Although Complainant acknowledges that he received no formal letter indicating when the RIF layoff would occur, Complainant argues that existence of the "surplus list" and S1's confirmation that his Program Analyst position will be eliminated are sufficient to show the Agency is in breach of Paragraphs B and D.
The Agency investigated Complainant's claims pursuant to 29 C.F.R. � 1614.504 and found no breach of the terms in Paragraphs B and D in Section II of the Agreement.
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).
The Commission has previously found that bad faith in negotiating and implementing a settlement agreement constitutes a breach. Todd v. Soc. Security Admin., EEOC Request No. 05950169 (June 12, 1997); Dupuich v. Dep't of the Army, EEOC Appeal No. 0120073901 (Nov. 2, 2007). We have also found that "where an individual bargains for a position without any specific terms as to length of service, it would be improper to interpret the reasonable intentions of the parties to include employment in that exact position ad infinitum." See Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); see also Buck v. Dep't of Veterans Affairs, EEOC Appeal No. 01A12839 (July 6, 2001) (finding no breach where Complainant was reassigned in accordance with a settlement agreement, and held the new position for more than a year before the position was reclassified and ultimately downgraded). Further, the Commission has held that in the absence of a specific time frame in a settlement agreement, it is interpreted to be for a reasonable amount of time. Parker v. Dep't of Defense, EEOC Request No. 05910576 (Aug. 29, 1991)
The record contains no evidence indicating that the agency was aware that this circumstance would occur when the parties entered into the Agreement; therefore, we do not find that it acted in bad faith. See Carter v. United States Postal Serv., EEOC Appeal No. 01A60569 (May 25, 2006) (finding, three years after placing Complainant in a modified clerk position as part of a Settlement Agreement, the Agency was not in breach when it offered Complainant a different modified assignment because the district offices decided to eliminate clerk positions). Moreover, the only time frame in the instant complaint concerns Paragraph D. Complainant has 36 months to complete training. The Agreement does not specify that Complainant must remain in his exact position to take the coursework. The Agency has made no mention of firing Complainant, and has not provided Complainant with any documentation evincing an intent to breach the Agreement.
CONCLUSION
Accordingly, we find the Agency to be in compliance with the Agreement and we AFFIRM its decision finding no breach of the settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION
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
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
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 19, 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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