0120162079
10-19-2016
Salvatore K.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Highway Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Salvatore K.,1
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Highway Administration),
Agency.
Appeal No. 0120162079
Agency No. 201224544NHTSA02
DECISION
Complainant filed a timely appeal with this Commission after awaiting 30 days from Complainant's notice to the Agency of his breach claim. Complainant claimed that the Agency was not in compliance with the terms of the settlement agreement into which the parties entered. The Agency did not issue a final decision (FAD). We accept the appeal. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On February 5, 2016, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(6) The Agency agrees to expunge from Complainant's Official Personnel File (OPF or eOPF) the following items: (a) his reassignment from "Supervisory EO Specialist" to "EO Specialist" that occurred on or about January 6, 2012; (b) his placement on a Performance Improvement Plan (PIP) and his failure of the PIP' and (c) his removal from the Agency and Federal Service, that occurred on or about April 17, 2015. In addition, the Agency agrees to expunge from Complainant's OPF all references to the reassignment, the PIP, and the removal.
(7) The Agrees to amend the following documents within Complainant's OPF as follows: (a) the August 14, 2014 performance appraisal rating from "Unacceptable" to "Exceeded Expectations;" (b) the August 30, 2013 performance appraisal rating from "Achieved Results" to "Exceeded Expectations," and (c) the July 17, 2012 performance appraisal rating from "Achieved Results" to "Exceeded Expectations." In addition, the Agency agrees to expunge from Complainant's OPF all references to the lower performance appraisal ratings for July 17, 2012, August 30, 2013, and August 14, 2014.
(8) Consistent with Paragraph 7 above, the Agency agrees to retroactively process the within-grade increase (WIGI) effective July 13, 2014, to the GS-15, Step 5 level.
(9) Consistent with Paragraph 6 above, the Agency further agrees that Complainant's Official Personnel File will reflect his position throughout his employment with the Agency as "Supervisory EO Specialist," GS-0360-15. Complainant will be placed on paid administrative leave retroactive to April 17, 2015. The Parties understand and agree that Complainant's record will reflect no break in service and that the Agency shall accomplish the matters addressed in Paragraphs 6-9, as promptly as practicable after the effective date of this Confidential Settlement Agreement, consistent with the normal processing procedures followed by the Agency, and further agrees to initiate the normal processing procedures no later than 30 days after the effective date of this Confidential settlement Agreement; and
(13) The Agency agrees to grant Complainant access to his Employee Express and eOPF accounts only during the period of administrative leave. However, in the event the Agency determines, in its sole discretion, that it cannot provide such access due to technological constraints outside of the Agency's control, the Agency will provide Complainant with paper copies of any documents from his Employee Express and eOPF accounts no later than 7 business days following the receipt of Complainant's written request to NHTSA's Office of Chief Counsel.
By letter to the Agency dated April 11, 2016, 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 "show the math for the computation of its payments..., leaving Complainant and his counsel unable to determine if they have paid all that is required by the parties' February 5, 2016, Confidential Settlement Agreement and Release." Further, Complainant argued that "the Agency has used a non-standard form of signature for [complainant's] corrected Performance Appraisal Ratings, making them to appear less than genuine and authentic."
On appeal, Complainant states that he has been further prejudiced by the Agency's refusal to document its computations. He references a notice of indebtedness, dated May 3, 2016, which stated that the Payroll Operations Division has determined that Complainant received a Federal Salary payment in excess of the amount to which he was entitled. Complainant also references a letter that he received on July 9, 2016, informing him of the Government's claim of indebtedness for the claimed overpayment in his backpay for annual leave.
As noted above, the Agency did not issue a FAD. In its August 10, 2016 Opposition to Complainant's Petition for Enforcement, the Agency asserts that Complainant failed to prove that the Agency breached the Agreement because the Agreement did not require a separate calculation. The Agency contends that the Agreement did not specify a format for the performance appraisal. The Agency states that it has fully complied with its stated obligations. The Agency reasoned that it amended his prior performance ratings and paid him administrative leave and provided a retroactive within-grade increase.
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 Agreement to be valid and binding.
In this case, the Agreement did not require a summary of the calculations or specify the method by which the Agency determined its calculations. The Agency stated that the back pay amounts were reflected on the Period 7 and Period 10 pay stubs and that, consistent with paragraph 13, the Agency provided Complainant with access to his Employee Express account. Significantly, Complainant has not identified any payments which he did not receive.
Similarly, the Agreement did not dictate the specific format for the performance agreement or the signatures. The Agency explained that the performance appraisals do not mirror Complainant's earlier appraisal, because the Agency was required to remove all references to his 2012 reassignment. This necessitated the Agency creating new performance appraisal documents reflecting the responsibilities of a "Supervisory EO Specialist" with an "Exceeded Expectations" rating. We find that the Agency's actions comport with the terms of the settlement agreement.
For these reasons, we find that Complainant failed to show that the Agency breached the Agreement with regard to its obligations as of the date of this decision.2
Finally, we note that Complainant questions the validity of the notice of indebtedness that he received after the Agreement was executed and after he filed this Petition for Enforcement. Therefore, he appears to be raising new allegations on appeal. To the extent that he wishes to pursue any new claims, he should contact the EEO Counselor to initiate the EEO process.
CONCLUSION
Accordingly, we AFFIRM the Agency's determination that it did not breach the Agreement.
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
October 19, 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 provides for additional actions that are due by July 17, 2017. This decision does not address those obligations that have not accrued.
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