[Redacted], Sylvester D., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionOct 11, 2022Appeal No. 2022002607 (E.E.O.C. Oct. 11, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sylvester D.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2022002607 Agency No. DON-20-69316-01776 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD), dated March 8, 2022, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. The Commission accepts the appeal. 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 Naval Architect, GS-13, at the Agency’s SUPSHIP Gulf Coast Branch in Pascagoula, Mississippi. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. Complainant alleged, amongst other things, that the Agency denied his request for reasonable accommodation. Complainant explained that he experienced a heart attack on June 15, 2019, while he was at work, and was diagnosed with severe ischemic cardiomyopathy. It was recommended that he undergo placement of an automated implantable cardioverter defibrillator (AICD) for prevention of sudden cardiac death. 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. 2022002607 2 In October 2019, Complainant returned to work and requested telework as a reasonable accommodation. Complainant informed the EEO Counselor that in response, management threatened to “force” him into “early retirement” or reassign him to a GS-8 or GS-9 position because he “would not be paid thousands of dollars to just sit at home.” Complainant also alleged that management requested that he provide them with medical records every 30 days. A February 14, 2020 letter from Complainant’s cardiologist states that Complainant is limited by reduced cardiac output, which is magnified by exertion, including activities of daily living. The cardiologist stated Complainant’s “functional capacity would not allow activities aboard ship.” Additionally, the cardiologist declared that the physical requirements listed in Complainant’s “job description would place extreme and undue stress to [Complainant] given his cardiac status.” Nonetheless, the Cardiologist determined that Complainant “would be able to perform recumbent sedentary work, including desk/computer work without risk to his cardiac status.” On September 8, 2020, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: 2. The Agency, in consideration of the mutual promises contained herein, agrees to the following: (a) The Complainant, having suffered a catastrophic medical event resulting in a permanent medical condition that precludes him from performing the physical demands of his Naval Architect, GS-0893-13 position, will be authorized to remain in his current position in a light duty status and perform, within the limits of his disability, support of the Engineering Department. For the purposes of this Agreement, light duty is defined as not requiring the Complainant to perform the duties of his position as outlined in the “Factor 8- Physical Demands” section of the Complainant’s Position Description (PD), including duties performed aboard ships or during sea trials. This light duty shall only continue until March 1, 2024, the earliest date the Complainant can retire with full benefits. (b) The Complainant, having a medical condition that subjects him to higher risk for serious complications from COVID-19 (included in CDC definition of High Risk Populations), is authorized to telework from home until it is determined by proper authority that it is safe for employees with underlying medical conditions to return to their normal work locations. The Agency has determined that such return will not occur until the implementation of Phase 3 of the Agency’s Return to Work plan. (c) At the start of the Agency’s Phase 3 implementation of its Return to Work Plan, the Complainant will provide medical documentation to the Agency verifying that the Complainant’s medical condition does not preclude him from working in a light duty status. The Complainant will submit similar 2022002607 3 documentation verifying his fitness for light duty periodically, at not less than a semi-annual basis. The Complainant’s Phase 3 work location will be his regularly assigned work location in Administration Building No. 1, at the Ingalls shipyard facility in Pascagoula, Mississippi. 3. The Complainant, in consideration of the mutual promises contained herein, agrees to the following: (a) The Complainant agrees that the Agency’s permission to perform work in a light duty status is temporary and will not extend past March 1, 2024, the earliest date the Complainant can retire with full benefits. (b) Withdraw his formal EEO complaint with prejudice and, by signing this Agreement, hereby waives, releases and forever discharges the agency, its employees and agents from any claims, complaints, demands, causes of action, and damages arising out of his employment with the agency, including the matters alleged in the present complaint and all related matters up to the date of this Agreement. This includes Atef Mohamed v. Honorable Kenneth J. Braithwaite, Secretary of the Navy, DON Docket Number 20-69316-01776; ADR Case 20-NS- 010; and ADR Case 20-NS-016. (c) Refrain from filing any new claims, complaints, grievances, proceedings, appeals, or lawsuits in any judicial or administrative forum whatsoever (including complaints to the agency Inspector General, Office of Special Counsel, or other public official’s office) against the Agency, its employees or agents, arising out of his employment with the agency, pertaining to the matters alleged in the present complaint and all related matters up to the date of this Agreement. * * * 6. This Agreement constitutes the full and complete understanding between the Complainant and the agency. The parties agree and understand that no other promises or Agreements which may have been stated or discussed during the period of time preceding the signing of this Agreement will be binding on the agency unless clearly stated in this Agreement. Changes, modifications or clarifications to this Agreement will be binding and valid only if in writing and signed and dated by the Complainant and the agency. * * * On October 22, 2021 the Executive Director sent out an email to all employees informing them that the phase approach had been eliminated, this included Phase 3 referenced in provision 2(b) of the Agreement. 2022002607 4 The Executive Director identified employees with underlying medical conditions as “Phase 3 RTO employees” and stated “because Covid-19 was here to stay, it was not realistic for Phase 3 employees to be granted blanket 100% telework until total eradication of the Covid-19 virus.” The Executive Director instructed all employees to return to work starting November 22, 2021. However, the Agency returned to maximum telework status prior to November 22, 2021 due to a “significant spike” in Covid-19 infection rates. In November 2021 Complainant emailed the Branch Supervisor expressing his concerns with returning to the office. The Branch Supervisor replied on January 20, 2022, referenced the Executive Director’s October 22, 2021 email which “directed all employees to return to their normal pre-pandemic work location” and notified Complainant that he was to return to work “when directed by the Executive Director.” The Branch Supervisor then cited to the Agreement, and informed Complainant that even though the phased approach had been eliminated, the Agreement did not authorize him to “continue in a full-time telework status.” On January 21, 2022, Complainant alleged that the Agency breached 2(b) of the Agreement, since the proper authority had not determined whether it was safe for employees with underlying medical conditions to return to work. In its March 8, 2022 final agency decision, the Agency found it did not breach the settlement agreement. It reasoned that even though it had “eliminated” the phased approach, and “the implementation of Phase 3 was no longer” appropriate, the existence of the Return to Work plan was sufficient to establish that the Executive Director had determined that it was “safe for all employees to return to work.” The instant appeal followed. Neither Complainant nor the Agency submitted a statement or brief on appeal. 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). 2022002607 5 Here, we find the settlement agreement is plain and unambiguous on its face with respect to the obligations as set forth in provision 2(b). Provision 2(b) required the Agency to determine whether it was safe for employees with underlying medical conditions to return to their normal work locations. Provision 2(b) specified that employees with underlying medical conditions would not return to the office “until the implementation of Phase 3.” The Executive Director described that Phase 3 was specifically created for employees with underlying medical conditions and admitted that it was eliminated. Nonetheless, the Agency argues that the existence of a Return to Work plan is sufficient to establish that the Executive Director determined that it was safe for all employees to return to work. The Agency has not submitted a copy of the Return to Work plan or pointed to any language in it to show that even though Phase 3 was removed, the Executive Director specifically considered employees with underlying medical conditions. The mere existence of the Return to Work plan is insufficient to establish that the Agency fulfilled its obligation under the Agreement. Therefore, we find that the Agency breached the Agreement. Where we find a breach, the Commission has two options to remedy the situation: 1) reinstate the complaint or 2) order specific performance. See 29 C.F.R. § 1614.404(c). If a complaint is reinstated for further processing, the parties must be returned to the status quo at the time that the parties entered into the settlement agreement. This would require that Complainant return or forego any benefits received pursuant to the settlement agreement. See, e.g., Armour v. Dep't of Defense, EEOC Appeal No. 01965593 (June 24, 1997). CONCLUSION Accordingly, the Commission REVERSES the Agency’s final decision finding no breach and REMANDS this matter to the Agency for further processing in accordance with the Order below. ORDER Within thirty (30) calendar days of the date this decision is issued, the Agency shall notify Complainant of his option to either: (a) return to the status quo prior to the signing of the September 8, 2020 settlement agreement and having his underlying complaint reinstated, or (b) having the terms of the September 8, 2020 settlement agreement specifically enforced. The Agency shall also notify Complainant that he has fifteen (15) calendar days from the date of his receipt of the Agency's notice within which to notify the Agency of his choice. A copy of the Agency's notice to Complainant regarding his options, as well as a copy of either the correspondence reinstating the complaint for processing or the correspondence notifying complainant that the terms of the agreement will be specifically enforced and evidence of such performance, must be sent to the Compliance officer, as referenced below. 2022002607 6 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 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). 2022002607 7 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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. 2022002607 8 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 11, 2022 Date Copy with citationCopy as parenthetical citation