0120172653
08-07-2018
Valentin P,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Valentin P,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120172653
Agency Nos. ARAPG11AUG0353,
ARAPG12FEB01072, ARAPG12MAY2005
EEOC Hearing Nos. 531-2013-00249X,
531-2013-00250X and 531-2013-00251X
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) after his claim to the United States District Court for the District of Maryland was dismissed for lack of jurisdiction. He then appealed to the Commission from the Agency's final decision (FAD), dated September 26, 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 had retired from his position as a Chemical Engineer at the Agency's Edgewood Chemical Biological Center (ECBC), U.S. Army Research Development and Engineering Command facility in Aberdeen Proving Ground, Maryland.
On April 27, 2016, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. At the time of the settlement, Complainant was accompanied by a non-attorney. The parties reached an agreement, in principal and verbally, during the EEOC hearing of his complaints. The agreement was transcribed by a court reporter. The recorded settlement agreement provided, in pertinent part, that:
(1) The Agency agrees to pay Complainant's attorney a lump sum payment of $25,000 in full satisfaction of all monetary, liability and non-monetary liability;
(2) The Agency agrees that, if asked, the Agency will provide a neutral reference. Complainant will refer any prospective employers to the ECBC Work Force Management Office, [which] will provide a neutral reference. A neutral reference is defined as stating that Complainant was an employee of ECBC, identifying his job title, series and grade and dates of employment. No other information will be provided (The Agency later identified the name of the contact who would provide Complainant with a neutral reference);
(3) The Agency agrees to initiate the necessary paperwork to remove a notation, from a form SF-50 in Complainant's personnel file, indicating that he had been "forced to retire."
(4) Complainant may revoke this agreement by delivering written notice of the revocation to an address to be provided in the future, in written version. For the revocation to be effective, written notice must be received by the Agency representative no later than the close of business on the seventh day after the final signature on this agreement. If Complainant fails to revoke the agreement within seven days from the date of the final signature on the agreement, this agreement will become effective and binding on both parties and will be filed with the EEOC in accordance with the terms and conditions as set forth herein; and
(5) The terms set forth in the agreement are the complete understanding of the parities. The agreement that was read into the record represents an agreement in principal to which both parties agreed.
The parties were unable to finalize a signed, executed agreement. The parties agreed that the settlement placed on the record would become the final agreement, if the EEOC did not receive a signed settlement within a reasonable period of time. Consequently, the agreement became final after the seven-day waiting period, per the terms of the Agreement.2
On August 19, 2016, the agency's check to Complainant's former attorney cleared the bank. Complainant also acknowledged that his former attorney had received the settlement proceeds. Complainant's former attorney of record relayed to Complainant a payment of $19,000, which was the differential between the $25,000 the attorney received and the outstanding amount Complainant owed the former attorney. The record shows that the attorney was attempting to pay Complainant $19,000, which was the settlement amount minus the fees Complainant owed to the law firm for services provided to Complainant.
By letter, dated September 22, 2016, Complainant filed his breach claim with the Agency's Director of the Army's EEO Compliance and Complaints Review and with this Commission, Complainant alleged that the Agency failed to "clean" other parts of his personnel file.
Agency Decision
In its September 26, 2016 FAD, the Agency concluded that it complied with the terms of the Agreement and that Complainant had received the full benefit of the Agreement.
Complainant initially filed his appeal of the Agency's decision with the U.S District Court for Maryland, which dismissed his breach claim for lack of jurisdiction. This appeal followed.
CONTENTIONS ON APPEAL
Complainant contends that the Agency was not in compliance with the April 27, 2016 Agreement because Agency Counsel referred in email correspondence to the Complainant's case by the EEOC number and not the Agency Docket number. He also contends that the Agency did not clean all of his records.
The Agency responds that the Agreement did not require the Agency to "clean" the Complainant's E-OPF, but that it took the steps to remove all documents that could be viewed as negative and has generated a trouble ticket to remove one remaining reference.
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 on both parties.3 Under the terms of the Agreement, Complainant waived his rights to pursue his claims that arose up to the date of the Agreement in exchange for $25,000 lump sum payment to "Complainant's attorney," a neutral reference, and the initiation of paperwork to amend the remarks on the SF-50 to delete the reference to the term "forced retirement" from his personnel record.
We understand that Complainant was under the impression that other parts of his personnel record would be purged of any and all references to a prior termination. That understanding was not reflected in the Agreement which the Parties entered. Therefore, we are constrained to adhere to the terms of the Agreement, which became final seven days after the hearing.
Although Complainant also asserted that the Agency did not remove the references to the proposed termination from his personnel file, in his correspondence, Complainant acknowledged receiving proof of compliance from the Army that his SF-50 had been revised to remove any reference to any "forced retirement."
On August 23, 2016, the agency also provided Complainant with point of contact information at the ECBC Workforce Management Office, to whom prospective employers could direct their requests for job references. The record also shows that the Agency put in place a mechanism to ensure that a neutral reference was provided in the event the Agency was contacted by potential employers inquiring about Complainant's pass employment.
In response to Complainant's claims, the Agency stated that, although the Agreement did not contain a requirement to "clean" his record, the Agency did purge Complainant's employment file of any reference to negative appraisals, purged the request for personnel action pertaining to the decision to remove Complainant, in addition to the removal of the reference to the "forced retirement."
It appears to us that the Agency met its obligations under the terms of the Agreement. In the instant case, the Agreement required the payment of $25,000 to "Complainant's attorney," and that consideration was accepted. The mechanism was put in place for the provision of a neutral reference upon requests. The record shows that the Agency initiated the paperwork to clear the statement that he was "forced to retire." All of these obligations were met.
For these reasons, we find that Complainant failed to meet his burden of showing that the Agency breached the Agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision finding that it was in compliance with the terms of the Agreement.
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 (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
August 7, 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 On June 30, 2016, based on the settlement, the United States Equal Employment Opportunity Commission (EEOC) Administrative Judge for the Baltimore Field Office issued an order of dismissal for three hearing numbers, referenced as EEOC No. 531-2013-00249X, 531-2013-00250X and 531-2013-00251X, which pertain to three Agency complaints identified as Agency No. ARAPG11AUG0353, ARAPG12FEB01072 and ARAPG12MAY0205.
3 We are troubled by the fact that this agreement was not signed in writing, which was anticipated at the time of the Agreement. Complainant and the Agency gave their verbal acceptances. Without signatures, it is difficult for us to be sure that the wording of the dictated Agreement was correct. We are also troubled by the fact that the Agency asserts that Complainant was without an attorney at the time of the Agreement was entered and yet the only monetary consideration was to be paid to an unnamed former attorney.
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