0120181669
09-18-2018
Shane L,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shane L,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(U.S. Coast Guard),
Agency.
Appeal No. 0120181669
Agency No. HSUSCG002742018
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated March 27, 2018, 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 compliance action, Complainant was a Machinist (CNC Operator), WG-3414-11, at the Agency's Headquarters facility in Washington, DC.
On December 8, 2018, Complainant and the Agency entered into a settlement agreement to resolve the EEO matter, referenced as HS-USCG-00274-2018. The settlement agreement provided, in pertinent part, that the Coast Guard agrees to:
(4a) Cancel the termination and pay back pay from November 2, 2017 to December 10, 2017. Paperwork will be submitted to process the back pay as soon as possible but no later than January 10, 2018;
(4b) Reinstate the aggrieved to the position of Machinist (CNC Operator) WG-3414-11, he will return to work on December 11, 2017 under his previous schedule. Probationary period will remain in effect until March 19, 2018. Inform aggrieved that prior to the end of the probationary period, three (3) or more absences without leave will be cause for termination;
(7) By executing this agreement, the parties affirm they entered into this agreement voluntarily, with full knowledge and understanding of its terms and conditions, after having the opportunity to have this agreement reviewed by their respective legal advisors;
(8) Unless otherwise specified in this agreement, the parties agree that each party is responsible for its own costs associated with this matter, including any attorney's fees. (CIVILIAN ONLY);
(10) Upon compliance and/or payment of the items and / or amounts set forth in this Agreement, the Aggrieved Person waives and releases the Coast Guard, the Department of Homeland Security, and its components in full, from any claims or causes of actions for back pay, damages, interest or attorney's fees, which he raised or could have raised through the date of this agreement;
(11) "The Aggrieved Person understands that if he requests the reinstatement of his Equal Employment Opportunity / Equal Opportunity (EEO/EO) complaint instead of requesting that the terms of this agreement be specifically enforced, he will be required to return all funds paid to him in the lump sum payment (if any); resume his position of record: etc.;" and
(12) The parties agree that the terms and conditions set forth in this resolution agreement form the complete and final basis for settlement, and there are no other agreements between the parties, express or implied, oral or written. ...This agreement may not be modified except by the written consent of the parties.
The record includes a memorandum, dated January 31, 2018, from the Equal Employment Specialist that states that "at the present time, compliance with section 4a is not fully complete." The memorandum also references the need for completion of the paperwork for back pay and his accrued leave.
By letter to the Agency dated February 20, 2018, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to complete and process the back pay by January 10, 2018 and claimed that he was not fully reinstated and "the system still shows him as having been terminated." He appears to request that the Agency implement its terms.
Agency Decision
The Agency found that it had "substantially complied with the terms of the agreement." The Agency reasoned that the breach claims pertained to provisions 4a and 4b The Agency noted that, on February 6, 2018, the Agency certified Complainant's time cards, and placed him on paid administrative leave for the period of November 2, 2017, through December 10, 2017. The Agency stated that the record "included a copy of a SF-50, retroactively dated November 1, 2018, which simultaneously cancelled Complainant's previous separation and reinstated Complainant to federal service." This appeal followed the Agency's decision regarding the December 8, 2017 agreement.
We note that the Agency's decision did not address a subsequent termination. The Agency stated that Complainant's assertion regarding the later termination was raised in a subsequent complaint HS-USCG-00981-2018, which was the subject of a second settlement agreement, effective March 5, 2018.2
Neither party submitted a 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).
We find the December 7, 2017 Agreement to be valid, knowingly entered, and binding on both parties.
In the instant case, the Agreement required the cancellation of Complainant's termination, his reinstatement to the position of Machinist (CNC Operator), WG-3414-11, with a return to work date of December 11, 2017, the payment of back pay from November 2, 2017 to December 10, 2017, and the submission of the necessary paperwork to process the back pay and relief, no later than January 10, 2018.
Complainant disputes that he was fully returned to federal service or returned to work as a Machinist. It is undisputed that the time-specific requirement was not met by January 10, 2018. It is unclear as to whether he received any monetary relief, in the form of back-pay from November 2, 2017 to December 10, 2017, reinstatement, or restoration of benefits due to him if he had been reinstated as of December 11, 2017.
Therefore, we find that the Agency breached the December 8, 2017 agreement, when the Agency did not submit the paperwork to process the back pay no later than January 10, 2018, and when the Agency failed to reinstate Complainant to the Position of Machinist with a return to work date of December 11, 2017, under his previous schedule. We also note Complainant's statement that his personnel record continued to show him as being terminated.
In the instant case, the Agency acknowledged that Complainant was not reinstated to resume work in his former position, under his previous schedule. We note that, in its decision at page 3, the Agency refers to a SF-50, "retroactively dated November 1, 2018, which simultaneously cancelled Complainant's previous separation and reinstated Complainant to federal service." Since the date of November 1, 2018 has not yet occurred, and the date of November 1, 2017 pre-dated this December 2017 Agreement, we find the claimed evidence to be unpersuasive.
In addition, we find that the Agency has not met its burden of showing that it cured the breach when it submitted the back-pay paperwork a month after the date specified in the Agreement. The Agency also did not show that the placement of Complainant in an administrative position was consistent with the terms of the Agreement to reinstate him and return to work in his Machinist position by a date certain. It is not for us to construe the meaning or intention of the Agreement or its terms. Consequently, the plain meaning of provisions 4(a) and 4(b) of the settlement agreement supports Complainant's breach claim.
Where this Commission finds that the settlement agreement has been breached, the only two remedies usually available are specific performance of the terms of the agreement or reinstatement of the underlying EEO complaint at the point processing ceased. See 29 C.F.R. � 1614.504 (c). In this case, however, the Agreement clearly stated, at paragraph 10, that Complainant did not waive and release the Agency from any claims or causes of action for back pay, damages, and interest, until there had been compliance or payment of the items and amounts set forth in this agreement. We find that there has not been compliance and that Complainant is the prevailing party in this matter. He is entitled to full relief, including back-pay with interest, damages, including restoration of leave, and reinstatement to his former position.
Inasmuch as Complainant did not clearly specify in his notice of breach which remedy was preferred. We therefore give Complainant the option, in accordance with this decision and the ORDER below, of either reinstating his underlying EEO complaint, or specifically enforcing the terms of the Agreement, which include all of the benefits noted in the December 8, 2017 Agreement. The Agreement specified that the Coast Guard agreed to cancel his termination, and pay him back pay from November 2, 2017 to December 10, 2017. It also required that the paperwork would be submitted to process the back pay no later than January 10, 2018. It required the reinstatement of Complainant to the position of Machinist (CNC Operator), WG-3414-11, with a return to work (resuming his position) as of December 11, 2017, under his previous schedule.
To the extent that Complainant wishes to address new claims of discrimination, retaliation, or breach, regarding actions or any settlement agreements that occurred after the execution of the December 8, 2017 agreement, he should initiate EEO counseling with the Agency as those subsequent claims must be addressed in a separate complaint or appeal.
CONCLUSION
We find that the Agency breached the December 8, 2017 Agreement. Accordingly, we REVERSE the Agency's Breach Decision and REMAND the matter in accordance with the ORDER below.
ORDER (C0618)
The Agency is ordered to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision becomes final, the Agency is ordered to notify Complainant of his option to either return to the status quo prior to the signing of the settlement agreement or to obtain specific performance of the agreement. 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 either that he wishes to return to the status quo prior to the signing of the agreement or that he wishes to allow the terms of the agreement to stand. Complainant shall be notified that in order to return to the status quo ante, he must return any monetary benefits received pursuant to the agreement. The Agency shall determine its obligations due to Complainant, or return of consideration or benefits due from Complainant, within thirty (30) calendar days of the date this decision becomes final, and shall include such information in the notice to Complainant.
2. If Complainant elects specific performance, the Agency shall notify Complainant that the terms of the settlement agreement shall stand and the Agency will abide by all of the terms of the Agreement.
3. If Complainant elects specific performance, in accordance with the terms of the December 8, 2017 Agreement, the Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to the terms of the Agreement and 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the date this decision was issued. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
4. If Complainant elects to reinstate his EEO complaint, the Agency shall resume processing the EEO complaint from the point processing ceased. The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
5. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSep). See 29 C.F.R. � 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)
Under 29 C.F.R. � 1614.405(c) and � 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via Fed SEP a final compliance report 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 and his / her representative.
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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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. 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
September 18, 2018
__________________
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 We note that the decision pertains solely to the December 8, 2017 Agreement and Agency Case No. HS-USCG-00274-2018. The Agency does not rely on the March 5, 2018 settlement agreement as being dispositive of the claims raised regarding the December 8, 2017 agreement.
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