[Redacted], Raphael P., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Oct 25, 2021

Appeal No. 2021003823 (E.E.O.C. Oct. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Raphael P.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021003823 Agency No. BOP-2019-0262 DECISION On June 21, 2021, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency determination (FAD) dated May 24, 2021, 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 complaint, Complainant worked as a Lieutenant, GS- 0007-09, at the Agency’s Federal Detention Center in Honolulu, Hawaii. Believing that the Agency subjected him to unlawful discrimination, Complainant initiated the EEO complaint process. On January 25, 2020, Complainant requested a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). On August 13, 2020, the parties entered into a settlement agreement and the AJ dismissed the complaint on the ground that Complainant’s claims were resolved. The settlement agreement provided, in pertinent part, that: (4) In exchange for the above, the Agency agrees to, within thirty (30) calendar days from the date this agreement is executed, place Complainant 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. 2021003823 2 on the Priority Placement List for a Cook Supervisor position at FDC Honolulu for a period of two (2) years in accordance with Agency policy. Complainant agrees to cooperate with any requests for documentation (including but not limited to completing any necessary forms (i.e., BPA 107 5) and providing an updated resume) made by the Agency in order to facilitate his placement on the Priority Placement List in accordance with policy. If Complainant does not provide requested documentation within thirty (30) calendar days of such a request, the Agency shall be deemed as having complied with this agreement and has no further obligation to place Complainant on the Priority Placement List. (5) Complainant acknowledges that the Agency, through Human Resources, must ensure that Complainant meets the minimum qualification requirements for a Cook Supervisor Position. In the event that Complainant is found to not meet these minimum requirements he waives the ability to contest that determination and the Agency will be deemed as having complied with the terms of this agreement. By letter to the Agency dated April 19, 2021, Complainant alleged that the Agency was in breach of paragraphs 4 and 5 of the Agreement, as he had applied for a Cook Supervisor position, advertised under vacancy announcement number HON-2021-0021, and the Agency did not hire him for that position. Complainant stated that, on April 1, 2021, the Agency advertised the Cook Supervisor position at issue with “new criteria verbiage” requiring applicants to have a Food Protection Manager Certification, which Complainant did not have at that time. Complainant stated that, on April 6, 2021, he asked the Agency’s Warden to waive this requirement, but Complainant did not receive a reply. Complainant stated that, on April 13, 2021, prior to the closing of the announcement, he completed the Food Protection Manager Certification and submitted it for his application. Complainant stated that, on April 19, 2021, he was informed that he was on the Best Qualified list but was not referred due to his not having any veterans’ preference points, his Food Protection Manager Certification was not going to count, and his DD-214 was not accepted. Complainant essentially argues that the Agency’s changes to the qualifications for the position and adding a new military clause was a deviation from the Agreement and the Agency’s decision not to review or refer him for employment was a breach of the Agreement. In its FAD, the Agency stated that the record indicated that Complainant did not meet the minimum qualifications for the position in time, as required by paragraph 5 of the Agreement and nothing in the Agreement dictated what skills, experience, or other qualifications should be listed in a vacancy announcement. The Agency also noted that Complainant obtained the requisite Food Protection Certification Manager certification and the letter Complainant received did not indicate that he was unqualified because of a lack of this certification. Regarding the veterans’ preference, the Agency stated that, pursuant to paragraph 5, in the event Complainant was found to not meet the minimum qualifications for the position, he waived the ability to 2021003823 3 contest that determination and any mistake by the Agency’s Human Resources Office to properly account for veterans’ preference was not actionable as a breach. The Agency also stated that the vacancy at issue was for a PO1A position, which is an extra position to allow for hiring over the normal allotment of positions in the Food Service Department. The Agency stated that it received direction from the Bureau’s Human Resource Management Division, that they were required to return all vacant PO1A positions. The FAD indicates that the Cook Supervisor vacancy at issue was closed without any selection. Thus, the Agency concluded that, since the vacancy at issue was not filled and Complainant remained on the Priority Placement List, there was no breach. The instant appeal followed. On appeal, Complainant reiterates his contentions in the April 19, 2021 letter alleging a breach of settlement. He also asserts that the Agency’s admission of making a mistake in failing to account for his veterans’ preference demonstrates a lack of good faith in making a determination as to whether he was qualified. He argues that the Agency’s HR office did not make a true, valid determination and he was, therefore, wrongfully denied selection for the position at issue. In response, the Agency states that, on October 23, 2020. Complainant was placed on the priority placement list in accordance with the settlement agreement. The Agency acknowledges that a Cook Supervisor vacancy was announced, but the Agency asserts that it was closed without selection, due to direction from the Western Region Human Resources Office that all PO1As that were vacant were to be returned. The Agency asserts that the direction provided that conditional or firm offers could continue, but all other vacant PO1As were to be returned immediately. The Agency asserts that, consequently, no selection for the position was made and Complainant was not selected due to the restructuring that affected positions beyond the position at issue. The Agency asserts that it has the full discretion to determine whether or not it will fill a position and argues that Complainant cannot show that there was a breach when the agreement only obligated the Agency to place him on the Priority Placement List. 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). 2021003823 4 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). Here, we find the settlement agreement is plain and unambiguous on its face with respect to the obligations as provided in provisions (4) and (5). Provision (4) imposed upon the Agency the obligation to place Complainant on the Priority Placement List for a Cook Supervisor position for 2 years and Complainant agreed to provide any necessary information towards his placement on that list. Provision (5) provides that Complainant acknowledges that the Agency’s Human Resources department will determine whether he meets the qualifications for the Cook Supervisor position and, should he fail to meet the qualifications, he waives the right to contest this determination. An October 23, 2020 memorandum from the Agency to Complainant provides that he was placed on the Priority Placement List for the position of Cook Supervisor and he would remain on that position for 2 years, unless he was selected for a Cook Supervisor position, or he provided a written request to be removed from consideration, or he did not meet the 30-day deadline to provide documentation if requested by Human Resources, to qualify Complainant for the position. Thus, the record shows that the Agency placed Complainant on the Priority Placement List for a Cook Supervisor position as obligated under the settlement agreement. We note that the agreement does not obligate the Agency to place Complainant in a Cook Supervisor position. We also note that the record shows that the Cook Supervisor position at issue was a PO1A position and includes copies of May 2021 email correspondence from the Western Regional Office Human Resource Administrator advising that the Regional Director had instructed that all vacant PO1As were to be returned immediately. The record also contains correspondence from an attorney in the Agency’s Employment Law Branch indicating that the Cook Supervisor vacancy at issue was being closed and returned without any selection and Complainant remained on the Priority Placement List. For these reasons, we find the Agency did not breach the settlement agreement. Accordingly, the Agency’s final decision is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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. 2021003823 5 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021003823 6 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 October 25, 2021 Date