0120180883
06-26-2018
Luigi B,1 Complainant, v. Alex M. Azar II, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Luigi B,1
Complainant,
v.
Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Food and Drug Administration),
Agency.
Appeal No. 0120180883
Agency No. HHSFDACBER05113
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated December 19, 2017, 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 at the Agency's Kensington Maryland Center for Biologic Evaluation and Research, Food and Drug Administration facility in Washington, DC.
On March 9, 2017, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(16) As soon as is practicable, but no later than ninety (90) days after the effective date of this agreement, the Agency agrees to allow Complainant to review files from his personal FDA hard drive pursuant to the following provisions:
b. Complainant will have the opportunity to save documents from the information saved from his personal drive to another Agency USB drive;
d. FDA will review said documents and make any necessary redactions or withhold necessary documents pursuant to Federal law, Agency regulations, or Agency policy. Redactions or withholdings may include, but are not limited to, documents containing Trade Secrets, Confidential Commercial Information, and Personally Identifiable Information. The Agency will make a good faith effort to complete the review of the requested documents within one-hundred twenty days (120) calendar days from the date that Complainant has conducted his reviews. If the documents requested are voluminous, the Agency may notify Complainant that it needs additional time to complete the review and will provide, in writing, the date that the Agency anticipates completing the review;
c. After completion of the Agency's review, it will provide the documents to Complainant on a USB drive to be delivered via overnight delivery.... Complainant agrees that the FDA's determination regarding necessary redactions and / or withholdings will be the final determination and he acknowledges that he is unauthorized to possess any Trade Secrets or Confidential Commercial Information.
(17) Complainant is afforded the same rights as any former FDA employee with regard to publishing rights. Complainant does not retain any intellectual property rights relating to any work performed or any research performed during his tenure with the Agency. Complainant is entitled to publish based on research performed while at the FDA pursuant to standard FDA policy, which indicates that Complainant must prominently place a disclaimer on any publication indicating that the information was not reviewed, cleared, or otherwise approved in any way by the FDA or the Department of Health and Human Services and does not represent the views of the FDA or the Department of Health and Human Services.
(26) This Agreement constitutes the complete understanding between Complainant and the Agency with respect to the matters encompassed in this Agreement. No other promises or agreements will be binding unless this Agreement is amended by a writing signed by both parties.
By letter to the Agency dated October 4, 2017, 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 violated Clause 16 when the Agency did not provide all of Complainant's personal files within the designated 120-day period referenced in the Agreement.
Complainant acknowledged that he had received 1,300 documents, but he had not received all of the 11,433 documents that he requested. He also claimed a breach because the files, that were provided to him, had been renamed and taken out of their folders, which was not acceptable. Complainant stated that he needed his documents with the original names and organized in the same folders, as he had stored them on his personal drive. In addition, he alleges that the delay of four months is evidence of "ongoing further harassment for his whistleblowing activities from the Division" and "ongoing discrimination due to his race, color, national origin, etc."
Complainant next claimed that the Agency violated Clause 17, because his work could not be published without a complete set of his personal files, named as he named the files. Complainant requested that the Agency complete its review and provide all the files by December 31, 2017.
The record includes the Agency's statement that it anticipated completion of all of its obligations by November of 2018. The Agency explained that every document must be reviewed for trade Secrets, Confidential Commercial Information and Personally Identifiable Information. The Chief of the Electronic Disclosure Team is overseeing the review.
In a subsequent FAX communication, dated January 15, 2018, Complainant stated that the Agency failed to fully implement Clauses 14b and 14d as of the date of the appeal. Those provisions pertain to the agreement to provide Complainant with back pay and benefits from March 3, 2013 until February 16, 2017 and retirement contributions under the Federal Employee Retirement System ("FERS"). Complainant acknowledged that the implementation of clause 14b on back pay was ongoing.
Agency Decision
The Agency concluded "that there has been no breach." The Agency stated that it notified Complainant about the voluminous natures of the files and the procedures that were necessary to process the requested files prior to release. The Agency stated that it has demonstrated that there has been, and continues to be, a good faith effort to provide documents to Complainant. The Agency also stated that there are efforts by the Agency to increase the amount of staff to handle this massive request. In its decision, the Agency stated that it estimated that it would complete the processing by October 2018.
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).
In the instant case, the Agreement permitted Complainant to review the files from his personal FDA hard drive. This was done. The Agreement provided that the FDA would review documents and make any necessary redactions, or withhold documents, pursuant to Federal law, Agency regulations or Agency policy. The review and provision of documents is continuing. The Agreement also stated that the Agency could notify Complainant if it needed additional time to complete the review and would provide the date that the Agency anticipated as the completion date of its review. The Agency notified Complainant, in writing, that additional time was required because of the volume of documents that Complainant requested.
The Agreement did not require the completion of the review and provision of documents by a date certain.
Although the process is slow, it is clear that the Agency is taking steps to comply with this Agreement, to the extent permitted under law. His claim of breach is premature. The Agency has not yet breached the Agreement. Consequently, we find that Complainant has not shown that the Agency breached the Agreement.
Regarding provision 17, we do not find that the Agency breached the provision. That section expressly states that Complainant does not retain any intellectual property rights relating to any work performed or any research performed during his tenure with the Agency. It also states that Complainant is entitled to publish based on research performed while at the FDA pursuant to standard FDA policy, which indicates that Complainant must prominently place a disclaimer on any publication. We do not find that he has been harmed by the delay.
To the extent that Complainant wishes to raise new claims of discrimination, he should contact the EEO Counselor to raise his claims of discrimination.
CONCLUSION
For these reasons, we AFFIRM the Agency's finding that it is not in breach of 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
June 26, 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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