Shayne K.,1 Complainant,v.Chad F. Wolf, Acting Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

May 21, 2020

2020000215 (E.E.O.C. May. 21, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shayne K.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2020000215 Agency No. HS-CBP-24601-2015 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (Decision) by the Agency dated September 27, 2019, 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 Customs and Border Protection Officer, GS-1895-12, at the Agency’s Los Angeles International Airport facility in Los Angeles, California. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On November 11, 2017, Complainant and the Agency entered into an initial settlement agreement to resolve the matter. On January 8, 2018, the parties amended the initial settlement agreement (Agreement). This Agreement provided, in pertinent part, that: (3) The Agency agrees that Complainant will continue in his current shift and position at the Los Angeles International Airport (LAX) Cargo building 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. 2020000215 2 while there is ongoing construction in or around LAX passenger terminals. This assignment will last a duration of two years from the date of full execution of this agreement. . .After the two years, the Agency may reexamine Complainant's assignment, on a yearly basis to determine whether the conditions for continuing the assignment (construction in or around LAX passenger terminals and asthma) exist. If those conditions cease to exist, Complainant will remain in his current position until the following Bid, Rotation and Placement (BRP) is implemented. Complainant and the Agency further agree the assignment to the Cargo building is not a permanent assignment, but is based on both conditions (asthma and Construction at LAX passenger terminals) being present. The terms of this Agreement do not affect Bid, Rotation and Placement rights or other terms covered under Article 13 of the October 1, 2017, Collective Bargaining Agreement (CSA). By email to the Agency dated August 6, 2019, Complainant alleged that the Agency was in breach of the settlement agreement and requested that the Agency specifically implement its terms. Specifically, Complainant said that during an email exchange with the Chief of Operations, he was informed that “You were placed in [Tactical Operations/Advanced Targeting Unit (ATU)] because of the Agreement you have with the Agency as it states you needed to be assigned to a location in the LAX Cargo Building. You did not have seniority to be placed in ATU based on your bid submission.” Complainant argued that this violated that portion of clause 3 of the Agreement that stated, “The terms of this Agreement do not affect Bid, Rotation and Placement rights or other terms covered under Article 13 of the October 1, 2017, Collective Bargaining Agreement (CSA).” In its September 27, 2019 FAD, the Agency concluded there was no breach of the Agreement. The Agency found that management initially incorrectly notified Complainant that he would have to bid for FY 2020, but subsequently clarified that, if the conditions for continuing the assignment ceased to exist, Complainant would still remain in his position at ATU until at least January 8, 2020, and indeed would continue in that position until the next bid cycle. 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). 2020000215 3 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). In the instant case, we find Complainant has not shown that the Agency breached the Agreement. We note that, with regard to the August 2, 2019 email Complainant received from the Chief Officer of Operations - Global Entry notifying him that his placement at ATU was pursuant to the Agreement and not pursuant to his Bid, Rotation, and Placement (BRP) rights, that fact does not amount to a breach of the Agreement and Complainant has not successfully explained how it does. Indeed, in his email alleging breach, Complainant further stated “if I am removed from ATU with both conditions referenced in the Agreement currently present, then the Agency is now knowingly violating another portion within Paragraph 3.” We note, however, that Complainant has not shown that, to date, he has been removed from ATU “with both conditions . . . currently present.” As such, Complainant has not shown the Agency breached the Agreement. On appeal, Complainant argues: Per the Settlement Agreement, my bid should have been presented and I should have been allowed to bid for a position that was available when my name and seniority date came forward. That assignment slot should have been held for me while I remained in the position agreed upon within the Settlement Agreement until the duration of that position's bid cycle or the terms of the Agreement were no longer in effect, which ever came first. . . . Due to the Agency's violation of the Settlement Agreement I am currently officially in limbo at the moment and at the mercy of the Agency's will, making me vulnerable to any reprisal the Agency may seem fit and/or necessary. My only protection from such reprisal is a portion of the Settlement Agreement in which the Agency continues to interpret as having an expiration date of January 08, 2020. However, even with that I fear that the Agency will once again violate the Settlement Agreement as they have shown to do in many instances prior to include but not limited violating the CBA which is agreed upon by the Agency and the Nation Treasury Employee Union (NTEU) and in this instance which occurred within the very first year of the Settlement Agreement's implementation. We note, however, that Complainant has not shown he was not allowed to bid for any position pursuant to the Agreement. If indeed Complainant was prevented from bidding for a position, that could constitute a violation of the CBA and Complainant would need to seek a remedy through the Union. His allegation of breach of the Agreement, however, would only apply if he was prevented from bidding pursuant to the Agreement, and Complainant has not shown that such an event occurred. We further note that contrary to Complainant’s argument, the Agreement does not state that assignment slots should be held for him while he remains at ATU. 2020000215 4 As for Complainant’s arguments that he is “in limbo” or that the Agency might breach the Agreement in the future, such concerns are speculative and do not constitute a valid current claim of breach. Finally, Complainant alleges that “The Agency breached the Settlement Agreement when they used the terms of the Settlement Agreement to impair Complainant's rights for bidding on positions under the CBA” but Complainant has not shown how his bidding rights were in any way impaired. CONCLUSION The Decision is AFFIRMED. 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 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. 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). 2020000215 5 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 May 21, 2020 Date