0120161870
10-20-2016
Rufus G.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rufus G.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Contract Audit Agency),
Agency.
Appeal No. 0120161870
Agency No. DCAA-CASE-W15-006
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated May 2, 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 January 30, 2015, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
3(f). Within 30 days of the effective date of this agreement, remove all Memorandums for Record addressing the Complainant's minimally successful performance from the supervisory personnel file and the Complainant's eOPF.
By letter to the Agency dated September 22, 2015, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to remove all references of his minimally successful performance from the supervisory personnel file. In support of his claim, Complainant indicated that his former supervisor (Supervisor) provided his current office a copy of his old Performance Appraisal which was the subject of the settlement agreement.
In its May 2, 2016 FAD, the Agency concluded that it had complied with the settlement agreement. The Agency noted that on February 20, 2015, the Branch Manager changed Complainant's 2014 performance rating from Minimally Successful to Fully Successful. The Agency also found that the Branch Manager issued a Midyear Performance Evaluation of Fully Successful for the period of July 1, 2014 through December 31, 2014, which replaced the December 31, 2014, Mid-Year Performance Evaluation of Minimally Successful that was issued by the Supervisor. However, the Agency found that Complainant's allegation was correct that a copy of the minimally successful appraisal was provided to his new supervisor. Nonetheless, the Agency argues that it has corrected the breach in that it provided Complainant's current supervisor with the Fully Successful rating. As such, the Agency determined that it had rectified the situation and the release of the prior Performance Evaluation had been corrected. On January 6, 2016, the Agency confirmed that there are no copies of Complainant's old Performance Appraisal. Therefore, the Agency concluded that it was now in full compliance with the terms of the settlement agreement.
This appeal followed. Complainant asserted that the Agency officials have continued to subject him to retaliation. He had hoped for a fresh start but the Agency has denied that to him.
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).
The Agency correctly determined that it was in breach of the settlement. The Agency failed to verify that the Supervisor removed all references of the Performance Evaluation when the Agency implemented the settlement agreement. When it was discovered that the Supervisor kept a copy of the old Performance Appraisal and provided it to Complainant's new supervisor, it was a clear breach of the settlement agreement. The Agency asserted that the breach has been cured and Complainant was provided a "Fully Successful" appraisal from his new supervisor.
Based on the Supervisor's failure to initially fully comply with the settlement agreement, we find that Complainant should be provided with the opportunity to confirm that the document at issue is no longer within his files. As such, we find it reasonable that Complainant be given the opportunity to review his OPF and the Supervisor's file to ensure that all references to the Performance Appraisal were removed.
To the extent Complainant has asserted that the Agency has engaged in additional acts of unlawful discrimination and/or retaliation, we find that Complainant should pursue his new claims with the Agency's EEO Office.
CONCLUSION
As such, we AFFIRM the Agency's determination of breach and REMAND the matter in accordance with the ORDER below.
ORDER
The agency is ordered to take the following remedial action:
1. Within fifteen (15) calendar days, the Agency shall contact Complainant to set up a time for him to review both the physical and electronic copy of his OPF. In addition, the Supervisor will provide Complainant with time to review his files to ensure that the Performance Evaluation is no longer located in any file.
2. At the conclusion of the review period, Complainant will inform the agency in writing whether he found any references or documents appraisal.
3. If Complainant indicates that the OPF has a reference or document regarding the appraisal at issue, the Agency shall expunge the reference within thirty (30) calendar days. Complainant will be given an additional time to review his OPFs to ensure that all references have been expunged.
4. The Agency shall complete all of the above actions within ninety (90) calendar days from the date on which the decision is issued.
The agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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.
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 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 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
October 20, 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
0120161870
2
0120161870