0120160930
04-26-2016
Junior T.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Junior T.,1
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120160930
Agency Nos. DOIOS120623; DOIOS090057
DECISION
Complainant filed a timely appeal with this Commission after the Agency failed to issue a final decision (FAD) or respond to Complainant's claim that the Agency was not in compliance with the terms of the settlement agreements 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 the Director, Office of Small and Disadvantaged Business Utilization, at the Agency's Office of the Secretary in Washington, DC.
On June 11, 2009, the parties entered the first of two settlement agreements to resolve Agency No. DOIOS090057.
On December 21, 2012, Complainant filed a second formal complaint (DOI-OSA-12-0623), alleging that the Agency discriminated against him. The Agency acknowledged receipt of the complaint, by letter dated January 16, 2013. The acknowledgment letter referenced the complaint number that had been as DOI-OSA-12-0623. In addition, on October 2, 2012, the Agency acknowledged that Complainant filed an "Informal EEO Complaint" alleging that from November 1, 2011 and continuing, Complainant was subjected to harassment. He alleged that he was "cautioned by [his] supervisor that she wanted to avoid any more EEO complaints from [his]employees which further undermined [his] authority to take progressive/corrective action(s) against non-performing employees."
On January 22, 2013, the parties entered into a second settlement agreement to resolve the EEO matter identified as Complaint DOIOS120623.2 Complainant and his attorney signed the agreement on January 18, 2013. The settlement agreement provided, in pertinent part, that:
(1) When this agreement is fully executed, it will constitute a withdrawal with prejudice and release by Complainant of any and all formal complaints and appeals including... any and all claims ...having arisen on or prior to the effective date of this Agreement.
(3) Within 30 days of the effective date of this Settlement Agreement, the Agency shall provide Complainant with a revised FY 2012 performance rating with the following rating for each element: Business Leadership and Results - Superior 94); Communication and Representation of the Department of the Interior Small Business Program - Exceptional (5); Diversity and Human Capital Management - Fully Successful (3); Administering Resources and Financial Management - Superior (4); Electronic Commerce - Superior (4) resulting in an overall rating of "superior;"
(4) Within 30 days of the effective date of this Settlement Agreement, the Agency shall expunge any negative information from Complainant's OPF;
(5) Complainant shall be reassigned to the position of Senior Advisor for Partnerships, GS-340-15 in the Office of Civil Rights, Office of the Secretary in the next pay period following the effective date of this settlement agreement.
(8) Complainant agrees that, with the exception of the monetary amounts to be paid by the Agency [as $5,000 legal fees], he is not entitled to any other form of damages, in connection with the settlement of the above-captioned complaint. Complainant agrees that this Settlement Agreement resolves all employment-related matters, issues and claims he has filed or could have filed arising out of his employment with the Agency up to and including the effective date of this Settlement Agreement.
(10) All parties to this Settlement Agreement agree, to the extent permitted by law, that the terms and conditions of this Settlement Agreement...are to be deemed confidential and are not to be discussed with anyone with the following exceptions: ...disclosures made by the parties for the limited purpose of implementing or enforcing the terms of the agreement.
The record indicates that Complainant was reassigned to the position of Senior Advisor. In an email communication, dated March 11, 2013 FAD, the Agency's Human Resources Specialist confirmed that the reassignment of Complainant was effective on February 10, 2013 and his eOPF showed that the reassignment action had been placed in his electronic file.
The Agency did not respond to Complainant's breach claims regarding the first or second settlement agreements.
By letter to the Agency dated July 15, 2015, Complainant alleged for the second time that the Agency was in breach of both of the settlement agreement, and requested that the Agency reinstate his complaint. Specifically, with regard to the second agreement, he stated that he had not received the final FY 2012 performance rating and the Agency had not shown proof that it had expunged any negative information from his complaint file.
Complainant filed directly with the Commission after receiving no response to his breach claims.
On appeal, Complainant maintains that the Agency breached the Agreement and continues to engage in a "continuing violations in the form of retaliations and reappraisal."
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 was knowingly and voluntarily entered and is binding on both parties.
Timeliness
We find that the Agency did not provide any evidence to support its conclusion that Complainant's breach claim was untimely. Therefore, we find that Complainant's breach claim should not be dismissed as untimely filed.
Non-Compliance
With regard to the first settlement agreement, we are obliged to defer to the terms of the second agreement which stated at paragraph 8 the Complainant agrees that "this Settlement Agreement resolves all employment-related matters, issues and claims he has filed or could have filed arising out of his employment with the Agency up to and including the effective date of this Settlement Agreement."
We note that the Agency did not issue a determination on the second settlement agreement and does not deny that a breach occurred. Moreover, we find that the record before us supports the breach claim with regard to the second Agreement. In the instant case, the Agreement required the Agency to provide Complainant with a revised FY 2012 performance rating and expunge any negative information from Complainant's OPF. The record before us does not show that the Agency complied with the requirement that the Agency provide him with a revised FY 2012 rating and expunge the record as required in paragraph 4 of the Agreement.
For these reasons, we find that the Agency has not shown that it fully complied with all of the terms of the Agreement. When we find that there is a breach, we have two options: reinstatement of the complaint or require specific performance.
In this case, Complainant has requested that his complaint be reinstated. If Complainant choses to reinstate his complaint, he would have to return any monetary relief which he obtained, including the attorney's fees paid to his attorney and his reassignment would be rescinded and he would return to his former position. If he chooses specific performance, we would require that the parties be held to the terms of the Agreement. Therefore, we order that Complainant be provided the option of specific performance of the enforceable provisions or reinstatement of his complaint.
Finally, to the extent that Complainant may be raising new claims of retaliation, he is advised to contact the EEO Counselor to raise his claims, because they are viewed as subsequent new actions, unrelated to this breach claim.
CONCLUSION
Accordingly, we FIND for Complainant on the breach allegation regarding the second settlement agreement and we REMAND the matter to the Agency for action consistent with the Order below.
ORDER
The Agency is ordered to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision becomes final, the Agency is ordered to notify Complainant of his option to either return to the status quo prior to the signing of the settlement agreement or to obtain specific performance of the agreement. The Agency shall also notify Complainant that he has fifteen (15) calendar days from the date of his receipt of the Agency's notice within which to notify the Agency either that he wishes to return to the status quo prior to the signing of the agreement or that he wishes to allow the terms of the agreement to stand. Complainant shall be notified that in order to return to the status quo ante, he must return any monetary benefits received pursuant to the agreement. The Agency shall determine its obligations due to Complainant, and return of consideration or benefits due from Complainant, within thirty (30) calendar days of the date this decision becomes final, and shall include such information in the notice to Complainant.
2. If Complainant elects specific performance, the Agency shall notify Complainant that the terms of the settlement agreement shall stand and the Agency will abide by all of the terms of the Agreement, including the non-disclosure provisions.
3. If Complainant elects to reinstate his EEO complaint, the Agency shall resume processing the EEO complaint from the point processing ceased. The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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), 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
April 26, 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.
2 On January 25, 2013, Complainant's former attorney sent a letter to the Agency which stated, "Per the parties' final settlement agreement, Complainant withdraws his complaint (DOI-OS-12-0623) with prejudice."
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