0120181060
07-19-2018
Wes S,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wes S,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.
Appeal No. 0120181060
Agency Nos. OCFO201500596, OCFO201400282, OCFO201600505
EEOC Hearing No. 461201600032X
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) after the Agency did not issue a final decision (FAD) regarding his claim that the Agency was not 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 an Information Technology Specialist, GS-2210-12 at the Agency's Chief, Financial Office, National Finance Center facility, in New Orleans, Louisiana.
On July 11, 2016, Complainant and the Agency entered into a settlement agreement to resolve two EEO matters, identified as "EEOC Complaint No. 461-2016-0032X and Agency No. OCFO-2014-00282." Additionally, the Agreement referenced OCFO-2015-00596 and OCFO-2016-00505. The settlement agreement provided, in pertinent part, that:
(4c) The Agency agrees that "within sixty (60) days of the last date this agreement is signed, the Agency shall provide eight (8) hours of EEO training to the named responsible managers as to EEO Sensitivity and appropriate Management Behavior;"
(5a) [Complainant] agrees to dismiss with prejudice EEOC Complaints No. 461-2016-00032X; Agency No. OCFO-2014-00282; OCFO-2015-00596 and OCFO-2016-00505;
(6b) Both Parties agree this is the entire agreement between the Complainant and the Agency. The Agency has made no promises to the Complainant other than those in this Agreement; and
(7d) [Complainant] understands and agrees that any claimed violation, breach, or failure to perform any of the commitments described in this agreement by the Agency shall be raised in writing within 30 calendar days of the date the Complainant knew or should have known of the alleged noncompliance.
By an email communication, dated June 26, 2017, Complainant stated that the Agency "violated the terms of the agreement nine months ago." In response, an Agency official informed Complainant, on that same day, that "the training of the RMOs in your settlement agreement is actively being discussed with OASCR and NFC management for processing." By letter to the Agency dated September 23, 2016, Complainant again alleged that the Agency was in breach of the settlement agreement, and requested that the Agency implement its terms. Specifically, Complainant alleged that the Agency failed to provide the eight hours of EEO Sensitivity and appropriate Management Behavior training to four named responsible managers.
The Agency did not issue a breach determination. After Complainant did not received a decision, Complainant appealed directly to the Commission.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency has done nothing to comply with the provision 4c that requires management training.
In its April 16, 2018 response to the appeal, the Agency concluded that Complainant was only alleging that provision 4c was breached, and that it complied with the Agreement because it issued the requisite training. The Agency provided a Certificate of Completion for two of the four managers, but not for the other managers named by Complainant. In addition, the certificates did not show the number of hours of training that were provided. Some of the certificates that were provided pertained to training that predated the execution of the Agreement.
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 is valid and binding on both parties and is properly before us.
In the instant case, the Agreement required that, within 60 days of the date of the agreement was fully executed, that Agency would provide eight (8) hours of EEO training to the named responsible managers as to EEO Sensitivity and appropriate Management Behavior. It is undisputed that the training was not provided within 60 days of the Agreement. The issue is whether the Agency cured the apparent breach.
The record shows that the Agency did conduct some training for three managers, but it is unclear whether all of the management officials who were to receive training under the Agreement actually received the training. The record also does not show the number of hours of training that each received. The compliance report does not provide sufficient documentation of compliance.
Further, in the face of Complainant's claim that the Agency "did nothing" to comply with the requirement of training specifically geared to certain named responsible management officials, and in light of the statement in the record which acknowledged that the matter of the training was still under discussion as of June 26, 2017, and in light of the Agency's failure to issue a final determination in writing as required by 29 C.F.R. � 1614.504(b), we are unable to currently determine whether or not the Agency has fully complied with the Agreement.
Consequently, we are remanding the matter back to the Agency for the issuance of a written final decision on compliance. We require a more detailed reasoning in writing to determine whether the Agency actually provided eight (8) hours of EEO training to each of the responsible managers as to EEO Sensitivity and appropriate Management Behavior. In doing so, the Agency should specifically address Complainant's contention that the Agency did not provide any additional training to the named officials that it did not provide generally in the regular course of training.
CONCLUSION
Accordingly, we REMAND this matter to the Agency, pursuant to the following Order, to gather any additional evidence needed to support a reasoned decision as to whether or not Complainant received all of the benefits to which he was entitled under the Agreement and the Agency met its stated obligations, and for the issuance of a written final decision on the breach issue with new appeal rights to this Commission.
ORDER
The Agency is ORDERED to take the following actions:
1. Within forty-five (45) calendar days of the date of this decision, the Agency shall gather all necessary evidence, including affidavits under oath and other documentary evidence, to decide whether it correctly complied with the requirement in 4c, and any other benefits to which he was entitled under the terms of the Agreement.
2. Within forty-five (45) calendar days of the date of this decision, the Agency shall issue a Final Agency Determination, pursuant to 29 C.F.R. � 1614.504(b), on this matter with new appeal rights to this Commission.
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 (Fed SEP). See 29 C.F.R. � 1614.403(g). Further the report must include supporting documentation of the Agency's calculation of 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 (Fed SEP) 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. See 29 C.F.R. � 1614.403(g). The report shall be 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 final report must contain supporting documentation when previously not uploaded, 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
July 19, 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.
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