0120161370
06-08-2016
Sol W.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sol W.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120161370
Agency No. ARBRAGG15OCT04085
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated March 9, 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
At the time of events giving rise to this compliance action, Complainant worked as a Watch Officer Supervisor at the Agency's 1st Theater Sustainment Command at Fort Bragg facility in Fort Bragg, North Carolina. On October 28, 2015, Complainant filed an EEO complaint, referenced as ARBRAGG15OCT04085.
On December 7, 2015, Complainant and the Agency entered into a settlement agreement to resolve the EEO matter, referenced above. The settlement agreement provided, in pertinent part, that:
(3a) The 1st Sustainment Command (Theater) agrees to expunge the original Memorandum for Record dated October 3, 2015, Subject: Counseling, . . . from the Aggrieved's internal personnel file within 30 days of the effective date of the Agreement;
(3b) "On September 24, 2015, the Civilian Personnel Advisory Center provided five questions to the 1st Sustainment Command (Theater) referencing the on-going review for position classification. The 1st Sustainment Command (Theater) 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."
(4) In exchange for the promises made by the 1st Sustainment Command (Theater) in paragraph three of the Agreement, the Aggrieved freely and voluntarily agrees to withdraw with prejudice any and all actions currently pending.
On December 8, 2015, the Deputy "ACoS" sent an email that attached the Agency's responses to the inquiries regarding the Accretions of Duties for Complainant. The email also advised Complainant "there will not be any revising of PDs from what was initially submitted to [his] office on July 15." The documentation provided to Complainant noted that the Operations Center Manager Position Description for [Complainant] No. ARBRAGG15OCTO4085 (UNCLASSIFIED). It note the "Classification: Unclassified. It stated that the date for "received responses: 8 December 2016." It gave the completion of classification as "15 December 2016." The email (Enclosure 4) stated that "the position description was subject to final review of the changes made (in red) to the supervisory factors outlined above. If in agreement, [the specialist]I will create the position in FASCLASS and management can proceed with the action." Since that time, Complainant asserts that Complainant's managerial duties have been reduced and his hours of work have been repeatedly changed. No changes have been made to his Position Description.
On January 13, 2016, Complainant maintains that he was adversely treated "during a senescing session conducted by the Agency's military EO office." On January 26, 2016, Complainant was informed by the Agency's representative that he was no longer involved in his complaint and that "it was now a CPOL issue." The Agency took no further action to address Complainant's new claims of retaliation and hostile environment.
By memoranda to the Agency dated February 4, 2016 and March 8, 2016, Complainant alleged that the Agency was in breach of the settlement agreement. Complainant requested that the pre-complaint, which included a claim for reprisal, be reinstated for further processing from the point where processing ceased." In his notice of breach, Complainant also stated, "I am still being subjected to subtle forms of reprisal." The Major (Chief, Administrative Law) and the EEO Specialist, EEO Compliance & Complaints Review concluded that the Agency met all of its obligations and closed compliance on the matter.
In a communication, titled Final Decision, dated March 9, 2016, the Agency initially concluded that a breach had occurred with regard to paragraph 3b. The decision acknowledged "the Activity has produced no evidence, to include the extrinsic document referenced in term 3b of the NSA, documentation of management's responses to the questions and evidence that the responses were in fact submitted. [The Agency found] that the Activity has not demonstrated that it is in compliance with term 3b of the NSA. The Agency "directed the Activity to cure its noncompliance within 35 days." Complainant filed this appeal with the Commission on the same day. Complainant alleges that the Agency failed to comply with the Agreement and continued to subjecting him to ongoing retaliation and a hostile environment, based on incidents that occurred subsequent to the execution of the settlement agreement.
In response to Complainant's breach appeal, the Agency now states the "1st TSC complied with all requirements set forth in the settlement agreement and respectfully requests the EEOC find accordingly and deny the 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).
In the instant case, the Agreement required that the Agency provide CPAC with the answers to five pending questions and that "the answers should allow for CPAC to determine position classification within 60 days of receipt of the responses." The record shows that the position description was still identified as "Unclassified" and that further action was required to complete the process. The Agency did not offer sufficient evidence that it took the actions required to fully comply with paragraph 3b. We find, therefore, that the record supports Complainant's claim that the Agency breached the Agreement.
When we find that the Agency has breached the Agreement, we have two options to resolve the matter: specific performance or reinstatement of the complaint. In his breach claims dated February 4, 2016 and appeal to the Commission, dated March 8, 2016Complainant has requested reinstatement of his complaint. Usually, before the complaint could be reinstated, Complainant would be required to return any monetary benefits that he received. Because the Agreement did not provide for any monetary compensation, there is no money to return prior to the reinstatement of the complaint. Therefore, we order the Agency to reinstate the complaint, in accordance with the Order below.
Finally, to the extent that Complainant wishes to pursue new claims of discrimination or retaliation, he should bring these matters to the attention of an EEO Counselor. The Agency should accept the claims and consolidate the matters for processing.
CONCLUSION
Accordingly, we REVERSE the Agency's Decision and REMAND the matter to the Agency for action consistent with the Order below.
ORDER
The Agency is ordered to resume processing the remanded EEO complaint from the point processing ceased, in accordance with 29 C.F.R. � 1614.108. 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 should also accept and consolidate any new claims of discrimination, hostile environment, or reprisal. The Agency shall issue to Complainant a copy of the consolidated 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.
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. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 (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
June 8, 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.
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