0520160455
01-15-2016
Sol W.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
Sol W.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Request No. 0520160455
Appeal No. 0120161370
Agency No. ARBRAGG15OCT04085
GRANT
The Agency timely requested reconsideration of the decision in EEOC Appeal No. 0120161370 (June 8, 2016). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c). After reviewing the previous decision and the entire record, the Commission finds that the request meets the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to GRANT the request.
ISSUE PRESENTED
The issue presented is whether the decision in EEOC Appeal No. 0120161370 should be vacated on the grounds that it was based on a clearly erroneous interpretation of material fact.
BACKGROUND
The December 7, 2015, settlement agreement between Complainant and the Agency's 1st Sustainment Command (Theater) (1st TSC) provided, in pertinent part:
3b. On September 14, 2015, the Civilian Personnel Advisory Center [CPAC] provided five questions to the [1st TSC] referencing the on-going review for position classification. The [1st TSC] will provide CPAC with the answers to the five pending questions within ten days of the signing of this Agreement. The answers should allow for CPAC to determine position classification within 60 days of receipt of the responses.
In a December 8, 2015, email, the 1st TSC provided CPAC with a three-page document consisting of the five questions from CPAC and its responses.
In a January 15, 2016, email, CPAC updated the 1st TSC with the status of its position classification for Complainant. The word "UNCLASSIFIED" appeared three times in the email: in the subject line, right after the subject line, and at the end of the email right after the signature line. In the email, CPAC indicated that it had received the settlement agreement on December 8, 2015, received the responses on December 8, 2015, and "completed the classification for the Operations Center Manager GS-0301 position" on December 15, 2015.2 In addition, CPAC stated that it had "attached the position description for final review of the changes made . . . [and] [i]f in agreement, [CPAC] will create the position . . . and management can proceed with the action."
By letter to the EEO Office dated February 4, 2016, Complainant alleged that the 1st TSC breached the settlement agreement. Complainant did not specify what provision was breached or how the breach occurred.
In its March 9, 2016, determination, the EEO Office concluded that the 1st TSC had not complied with provision 3b of the settlement agreement. Specifically, the EEO Office stated that it had requested documentation from the 1st TSC concerning Complainant's breach allegation, but that the only documentation provided by the 1st TSC was the January 15, 2016, email. Moreover, the EEO Office found that the January 15, 2016, email was insufficient to show compliance because the email did not contain the 1st TSC's answers to CPAC's five questions. Finally, noting that the Commission has held that an agency will be deemed as in compliance if it cures a breach during the 35-day period after the filing of the breach claim, the EEO Office informed the 1st TSC that it had until March 10, 2016 to cure its breach and provide evidence that it had done so. The EEO Office stated that, in the event the 1st TSC did not cure its breach by that date, Complainant's breach allegation would be deemed substantiated.
In a March 9, 2016, email, the EEO Office provided the 1st TSC with a copy of its determination. The word "UNCLASSIFIED" again appeared three times in the email: in the subject line, right after the subject line, and at the end of the email right after the signature line.
In a March 10, 2016, email, the 1st TSC provided the EEO Office with the December 8, 2015, email and the three-page document with the five questions from CPAC and the responses. In an April 1, 2016, email, the EEO Office informed the 1st TSC that it had received the supporting documentation and concluded that the 1st TSC had met its obligation.
Complainant filed an appeal with the Commission from the Agency's determination.3 On June 8, 2016, the Commission issued an appellate decision in EEOC Appeal No. 0120161370, which reversed the Agency's determination. Specifically, the Commission found that the Agency did not offer sufficient evidence that it took the actions required to fully comply with provision 3b of the settlement agreement. Citing the January 15, 2016, email, the Commission noted that the position description was identified as "UNCLASSIFIED" and that further action was required to complete the process. The Commission ordered the Agency to reinstate Complainant's complaint.
ARGUMENTS ON RECONSIDERATION
In its request for reconsideration, the Agency contends that the Commission clearly erred in finding that it breached provision 3b of the settlement agreement. Among other things, the Agency argues that the provision only required the 1st TSC to provide CPAC with the answers to the five questions within ten days of December 7, 2015. The Agency argues that the 1st TSC provided those answers in its December 8, 2015, email. Moreover, the Agency argues that the word "UNCLASSIFIED" in CPAC's January 15, 2016, email referred to the security classification of the email itself, not the classification status of the position. Finally, the Agency argues that: (1) the provision did not require the 1st TSC or CPAC to finalize the position classification by a certain date; (2) the provision merely stated that the answers provided by the 1st TSC "should allow" for CPAC to determine position classification within 60 days of receipt; and (3) the answers provided by the 1st TSC did allow for CPAC to determine position classification on December 15, 2016, as evidenced by CPAC's January 15, 2016, email.
Complainant did not submit a timely statement or brief in opposition to the Agency's request.4
ANALYSIS
Upon review, the Commission finds that the Agency's request for reconsideration meets the criteria of 29 C.F.R. � 1614.405(c), because the appellate decision involved a clearly erroneous interpretation of material fact or law. Specifically, the Commission, in its appellate decision, clearly erred in finding that the Agency breached provision 3b of the December 7, 2015, settlement agreement.
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 (Dec. 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 (Aug. 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 (Dec. 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. Bldg. Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
Here, the language in provision 3b required the 1st TSC to provide CPAC with the answers to the five questions within ten days of the settlement agreement. The record reflects that the 1st TSC complied, as evidenced by the 1st TSC's December 8, 2015, email providing CPAC with the answers to the five questions. The language in provision 3b also required the 1st TSC to provide CPAC with the type of answers that "should allow" for CPAC to determine position classification within 60 days of receipt. The record further reflects that the 1st TSC complied, as evidenced by CPAC's January 15, 2016, email stating that it had received the 1st TSC's responses and had completed the classification for the position.
Although the Commission, in its appellate decision, cited the word "UNCLASSIFIED" in CPAC's January 15, 2016, email as evidence that the Agency had not fully complied with provision 3b, we find that the word "UNCLASSIFIED" clearly does not refer to the classification status of the position. In so finding, we note that CPAC explicitly stated in the email that it had completed the classification for the position. In addition, we note that the similar use of the word in the EEO Office's March 9, 2016, email substantiates the Agency's argument that the word referred to the security classification of the email itself, not the classification status of the position at issue in the settlement agreement. Although the Commission, in its appellate decision, cited language in CPAC's January 15, 2016, email indicating that further action was required (it had "attached the position description for final review of the changes made . . . [and] [i]f in agreement, [CPAC] will create the position . . . and management can proceed with the action"), we find that there is no language in provision 3b, or any other provision in the settlement agreement, requiring the 1st TSC or CPAC to finalize the position classification by a certain date. Based on the above, we find that the Agency has complied with provision 3b of the settlement agreement.
CONCLUSION
The Commission GRANTS the Agency's request upon finding that it meets the criteria of 29 C.F.R. � 1614.405(c). The Decision in EEOC Appeal No. 0120161370 (June 8, 2016) is REVERSED, and the Agency's determination that it has complied with provision 3b of the December 7, 2015, settlement agreement is AFFIRMED. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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:
___________________________________ Bernadette B. Wilson's signature Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
_______________________
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 January 15, 2016, email listed the relevant dates as December 2016, but that appears to be a typo.
3 In his appeal, Complainant raised new allegations of discrimination. To the extent that Complainant wishes to pursue new claims of discrimination, he should bring these matters to the attention of an EEO Counselor. For timeliness purposes, the date of initial EEO Counselor contact will be deemed to be the date on which the instant appeal was filed.
4 A statement or brief in opposition to a request for reconsideration must be filed within 20 days of receipt of another party's timely request for reconsideration. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, � VII.B.1 (Aug. 5, 2015). The Agency filed its request on July 13, 2016, and included proof of service on Complainant. Complainant filed statements in opposition on October 17 and December 2, 2016. We decline to consider Complainant's statements, as they were untimely filed.
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