0120160415
03-30-2016
Lenny W.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lenny W.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(U.S. Coast Guard),
Agency.
Appeal No. 0120160415
Agency No. HS-USCG-21999-2012
EEOC Hearing No. 430-2012-00089X
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated September 28, 2015, 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
On March 20, 2013, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(1) The Agency agrees to retroactively place Complainant in the position of Environmental Protection Specialist, GS-0028-05, in Portsmouth, Virginia (a copy of the position description provided to Complainant), with promotion potential up to GS-12, pursuant to 5 C.F.R. � 213.3103(u) with all back pay and benefits in accordance with 5 C.F.R. Section 550.601 et. seq.
(8) If Complainant believes that the Agency has failed to comply with the terms of this Agreement, he shall notify the Office of Civil Rights and Civil Liberties within 30 days of the date he knew or should have known of the noncompliance.
Complainant was placed in the position. For two years, he performed the work under the assigned duties. In September of 2015, Complainant states that "the agency began to suggest that Complainant was in a similar position, but not the one agreed to by the parties in the Settlement Agreement." The key difference between the positions is that one position is slated for elimination.
By letter to the Agency dated September 23, 2015, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to place him in the agreed upon Environmental Protection Specialist position.
The Agency concluded that there was no breach because it placed him in the position referenced in the Agreement. The Agency also found that Complainant's breach claim should be dismissed because it was untimely filed. The Agency reasoned that Complainant was aware of the position to which he was assigned under the terms of the Agreement in March of 2013 and he waited "well over two years after the execution of the Settlement Agreement to file a noncompliance complaint." This appeal followed.
On appeal, Complainant argues that changing his position is a breach of the Agreement. The Agency responds that the fact that Complainant's current position may be slated for elimination is not relevant to whether the Agency complied with the Agreement. The Agency argues that nothing in the Agreement precludes the Agency from taking future personnel actions.
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 and binding on both parties.
In the instant case, the Agreement required the Agency to place Complainant in the position of Environmental Protection Specialist, consistent with the position description provided to Complainant at the time. There is no dispute that the Agency placed Complainant in the Environmental Protection Specialist position. Complainant acknowledged that "everything proceeded in accordance with the Agreement and complainant performed the work under the assigned duties." There is nothing in the Agreement that states that Complainant must be retained in the position permanently. There is also no evidence that the position to which he is assigned is not the position described in the Agreement.
Based on our review of the record, we find that Complainant failed to prove that the Agency breached the Agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's Breach Determination.
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 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 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 (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
March 30, 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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