0120161801
08-17-2016
Marquis K.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Marquis K.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120161801
Agency No. HSICE013922011
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated March 15, 2016, 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
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On December 17, 2015, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
3. The Agency agrees to the following:
(a) Select Complainant for the Detention and Deportation Officer (DDO) position he applied for in Washington, D.C., under vacancy announcement No. LAG-ER0-421548-MA-040, at the GS-1801-13, Step 2, pay level, with an effective date retroactive to February 13, 2011. Complainant's official personnel records will reflect that he was promoted to the GS-1801-14, Step 1 pay level on February 12, 2012, after meeting time in grade requirements;
(b) Assign Complainant from the Detention and Deportation Officer position in Washington, DC (outlined in paragraph 3(a)), to the Deportation Officer (Detention Standards Compliance Officer) position in Houston, Texas at the GS-1801-13, step 10 pay level with an effective date established by the parties within (30) days of the date Complainant signs this agreement;
(c) Pay Complainant back pay with interest and other benefits (such as Administrative Uncontrollable Overtime, Overtime/45 Act or other premium pay) that he would have received had he been selected to the Detention and Deportation Officer position in Washington, DC (outlined in paragraph 3(a)), on February 13, 2011, within one hundred and eighty (180) days of the date Complainant signs this agreement. The back pay will cease upon the effective day of this agreement;
(d) Pay Complainant a total lump sum of forty thousand dollars ($40,000) by electronic funds transfer within sixty (60) days of the date Complainant signs this agreement. The back pay will cease upon the effective day of this agreement;
(e) Provide Complainant with twenty (20) days of administrative leave, with an effective date mutually agreed upon by the parties within thirty (30) days of the date Complainant signs this Agreement. Complainant will also receive two (2) days administrative leave from the losing office and three (3) days of administrative leave from the receiving office for a total of five (5) days.
By letter dated January 1, 2016, and received by the Agency on February 4, 2016, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to select him for a GS-14 Detention and Deportation Officer (DDO) position in Vermont. Complainant requested that his title be recorded as a DDO, GS-14, step 5.
In its March 15, 2016 FAD, the Agency concluded it was not in breach of the December 2015 settlement agreement. The Agency provided documentation in the form of SF-50s showing it had fully complied with the terms of paragraphs 3(a) and 3(b). The Agency noted that Complainant did not allege violations of paragraphs 3(c), 3(d) or 3(e).The Agency argued that Complainant appears to rely on emails discussing settlement that occurred several months before the agreement was signed.
The instant appeal followed. Complainant states that the agreement was made in bad faith because he accepted the Houston position under duress, he was denied a security clearance, the Agency did not pay his relocation expenses, and his compensatory damages were purposely paid on December 31, 2015, so that he would be taxed on it just four months later in April 2016.
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 the settlement agreement is valid and there is no evidence that the Agency entered into the agreement with bad faith.
We find that a plain reading of the settlement agreement shows that the Agency did not promise Complainant a position in Vermont or require that his title be identified as DDO, GS-14, step 5.2 To the extent that Complainant argues that there were emails in September 2015, stating that he would be given a GS-14 DDO position in Vermont, we find that statements made prior to the execution of a settlement agreement cannot be considered. "Settlement negotiations, including any statements or proposals, are to be treated as confidential and privileged to facilitate a candid interchange to settle disputes informally." Harris v. Dep't of the Navy, EEOC Request No. 05941002 (Mar. 23, 1995). Additionally we note that paragraph 2 of the agreement states:
This agreement constitutes the complete understanding between the Complainant and the Agency. No other promises or agreements will be binding unless signed by both parties. Each of the undersigned parties is signing the agreement voluntarily without threats, coercion, or intimidation, and has had the opportunity to read and raise questions about its meaning prior to signing.
As such, we find that the Agency has fully complied with the terms of the settlement agreement, and its decision finding no breach is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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
August 17, 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 The agreement did provide that Complainant's personnel records would show that he assumed the position of DDO, GS-14, step 1, on February 12, 2012, but then indicated that as of the signing of the settlement agreement, he would assume a Deportation Officer position at the GS-13, step 10 level.
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