0120162408
04-26-2017
Randolph A.,1 Complainant, v. Victoria A. Lipnic,2 Acting Chair, Equal Employment Opportunity Commission, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
Randolph A.,1
Complainant,
v.
Victoria A. Lipnic,2
Acting Chair,
Equal Employment Opportunity Commission,
Agency.
Appeal No. 0120162408
Agency No. 2016-0032
DECISION
On July 19, 2016, Complainant filed an appeal from the Agency's final decision dated June 30, 2016, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly dismissed Complainant's complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mediator at the Agency's Atlanta District Office in Georgia. Complainant's shift was from 7:00 a.m. to 3:30 p.m. and he was allotted 60 minutes of break time (two 15-minute breaks and one 30-minute lunch break) per shift. Prior to July 3, 2014, Complainant's supervisors had accommodated his medical condition by giving him the flexibility to use his break time at the beginning or end of his shift to go to the gym.
On July 3, 2014, Complainant's new supervisor (S1) no longer allowed Complainant to have that flexibility. According to Complainant, S1 informed him that he needed approval from the Disability Program Manager (DPM). On November 3, 2015, Complainant submitted a reasonable accommodation request to the DPM for the flexibility to use his break time at the beginning or end of his shift to go to the gym. On December 16, 2015, Complainant filed a formal EEO complaint (Agency No. 2015-0072) alleging, in pertinent part, that the Agency discriminated against him on July 3, 2014, when S1 denied him a reasonable accommodation.
Subsequently, on February 5, 2016, the DPM decided to deny Complainant's November 3, 2015, reasonable accommodation request. Later that same day (February 5, 2016), Complainant initiated contact with an EEO Counselor in the instant complaint (Agency No. 2016-0032) regarding the DPM's decision.
On February 19, 2016, however, Complainant and the Agency entered into a settlement agreement to resolve Agency No. 2015-0072. The settlement agreement provided, in pertinent part3:
1. The parties hereby agree to settle the EEO dispute designated EEO Complaint No. 2015-0072, and any and all claims relevant thereto upon the terms indicated herein.
. . .
4. The parties agree to accept as final the decision by [the DPM] regarding Complainant's reasonable accommodation request.
. . .
7. This Agreement sets forth the entire agreement between the parties thereto, and fully supersedes any and all prior agreements or understanding, between the parties hereto pertaining to the subject matter of the complaint. (Emphasis supplied.)
8. Complainant understands that he may consult, seek advice from, and be advised by an attorney or other person of his choice in determining whether to sign this Agreement.
. . .
10. Complainant shall not institute any other action, claim, charge, complaint, appeal or lawsuit against the Agency or any of its agents, officials or employees with respect to any matter or issue raised in this action occurring prior to the date of execution of this agreement. (Emphasis supplied.)
Subsequently, on April 29, 2016, Complainant filed the instant complaint alleging that the Agency discriminated against him on February 5, 2016 when the DPM denied him a reasonable accommodation. The EEO Counselor's Report for the instant complaint contained the following information: (a) Complainant stated that the reasonable accommodation request in the instant complaint was also part of his prior complaint, but was "tabled" during mediation; and (b) the DPM stated that Complainant agreed to take the reasonable accommodation claim "off the table" in the prior complaint, but signed the February 19, 2016, settlement agreement indicating he would abide by the DPM's decision.
In its final decision, the Agency dismissed the instant complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for stating the same claim that is pending or has been decided by the agency or Commission. In doing so, the Agency found that the matter raised in the instant complaint was identical to the matter raised and settled in EEO Complaint No. 2015-0072. Specifically, the Agency determined that both complaints involved Complainant's claim that he was denied a reasonable accommodation when he was not given the flexibility to use his break time at the beginning or end of his shift to go to the gym. In addition, the Agency noted that Complainant expressly agreed in provision 4 of the February 19, 2016, settlement agreement to "accept as final" the DPM's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency improperly dismissed his complaint. Among other things, Complainant asserts that he also signed an earlier December 17, 2015, settlement agreement to resolve EEO Complaint No. 2015-0072.4 According to Complainant, in that prior settlement agreement, he agreed to have the DPM "make a final decision" about his November 3, 2015, reasonable accommodation request, and the prior settlement agreement resolved all issues except for the reasonable accommodation issue. In addition, Complainant asserts that when the Agency asked him to sign the February 19, 2016, settlement agreement to resolve EEO Complaint No. 2015-0072, the new settlement agreement was supposed to be the same as the prior settlement agreement, but he did not notice that the language in provision 4 was changed to "as final the decision," and he never agreed to give up his right to file a complaint about his reasonable accommodation request.
In opposition, the Agency argues that it properly dismissed Complainant's complaint. Specifically, the Agency asserts that the reasonable accommodation request which formed the basis for Complainant's claim in the instant complaint is identical to the reasonable accommodation request which formed the basis for Complainant's claim in Agency No. 2015-0072. In addition, referencing provisions 1 and 4 of the settlement agreement, the Agency asserts that the reasonable accommodation request which formed the basis for Complainant's claim in Agency No. 2015-0072 was settled by the February 19, 2016, settlement agreement.
ANALYSIS AND FINDINGS
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 (Dec. 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 (Aug. 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 (Dec. 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. Bldg. Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
Upon review of the record, we find that the Agency properly dismissed Complainant's complaint because the matter has been resolved by a settlement agreement. At the outset, we find that the reasonable accommodation request that Complainant raised with his supervisor in July 2015 was identical to the matter that was decided by the DPM on February 5, 2016. We note in this regard that, according to Complainant, S1 informed him that he needed approval from the DPM to use his breaks as requested. Thereafter, Complainant, on November 3, 2015, made a formal request to the DPM in accordance with S1's instructions. Thus, Complainant's request to S1 merged into the request to the DPM. Finally, on February 5, 2016, the DPM denied Complainant's November 3, 2015, reasonable accommodation request.
The record reflects that subsequently, on February 19, 2016, Complainant and the Agency entered into a settlement agreement containing a provision that the parties agree "to accept as final the decision by [the DPM] regarding Complainant's reasonable accommodation request." Complainant acknowledged on appeal that the provision relates to his November 3, 2015, reasonable accommodation request, which was resolved on February 5, 2016 when the DPM made his decision. Although Complainant asserts that a prior settlement agreement on the same matter contains different language, we emphasize that provision 7 of the February 19, 2016, settlement agreement explicitly states that the agreement supersedes any prior settlement agreements on the same matter. Although Complainant asserts that he did not notice the language in provision 4 of the February 19, 2016, settlement agreement, we find that he has presented no evidence (other than his bare assertion) that he did not knowingly and voluntarily enter into the settlement agreement. Finally, we note that provision 10 of the February 19, 2016, settlement agreement expressly prohibits Complainant from filing another complaint regarding the DPM's February 5, 2016, decision with regard to his November 3, 2015, reasonable accommodation request. The parties agreed that this matter was resolved. Accordingly, we find that the Agency properly dismissed the complaint because the matter at issue, the DPM's February 5, 2016, decision to deny Complainant's November 3, 2015, reasonable accommodation request, has been resolved by the February 19, 2016, settlement agreement.
CONCLUSION
The Agency properly dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for stating the same claim that is pending or has been decided by the agency or Commission because the matter has been resolved by a settlement agreement. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission AFFIRMS the Agency's final decision.
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
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
__4/26/17________________
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 In the present matter, the Equal Employment Opportunity Commission (EEOC) is both the respondent agency and the adjudicatory authority. The Commission's adjudicatory function is housed in an office that is separate and independent from those offices charged with in-house processing and resolution of discrimination complaints. For the purposes of this decision, the term "Commission" or "EEOC" is used when referring to the adjudicatory authority and the term "Agency" is used when referring to the respondent party to this action. The Acting Chair, as head of the Agency, has recused herself from participation in this decision.
3 The settlement agreement also provided that the Agency process a step-increase for Complainant and award Complainant additional annual leave.
4 The record does not contain a copy of a December 17, 2015, settlement agreement.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120162408
2
0120162408