0120143145
11-25-2015
Bruce P.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bruce P.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120143145
Agency No. 14-44255-00102
DECISION
Complainant filed an appeal with this Commission alleging that the Agency breached 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 Work Control Assistant at the Agency's Northwest Public Works.
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On August 13, 2014, Complainant and the Agency entered into a settlement agreement to resolve the matter. The Commission notes that the settlement agreement was signed by Complainant, Complainant's attorney (Attorney), and two Agency officials. The settlement agreement provided, in pertinent part, that the Agency will:
1. Maintain Complainant in his current position of record and billet number, and extend his temporary detail with an end date not to exceed one year from the beginning of the temporary detail (i.e. not to extend past July 17, 2015). During this temporary detail his physical work location will be PWD Kitsap, Bangor.
2. Continue to actively seek Complainant's permanent reassignment to a position at PWD Kitsap, Bangor, for which Complainant is qualified, and initiate the paperwork for permanent reassignment prior to the end of the temporary detail.
3. Once assigned to a permanent position at PWD Kitsap, Bangor, Complainant will remain subject to reassignment, as do all Navy employees, to other similar duties at his current grade within PWD Kitsap, dependent on the needs of the Navy, and in accordance with existing law, regulation, and manpower processes.
4. Re-Characterize the decision to suspend the Complainant, dated November 13, 2013, from a 14-day suspension beginning on November 18, 2013, to a suspension of 10 working days (working days defined as Monday through Friday) beginning on November 18, 2013.
Complainant submitted the instant document entitled as an "appeal" in which he alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to provide him with a formal document stating that he was assigned to the temporary detail for a period not to exceed July 17, 2015. Complainant also challenged that the settlement agreement provided no consideration and should be voided. He also claimed that the agreement was illegal for him to forfeit his rights. Further, he contests the provision 11 which states that if one provision of the agreement is considered illegal or invalid, it will not affect the validity of the remaining provisions. Finally, Complainant asserted that he was coerced to sign the agreement under the fear of losing his job and that the agreement should be voided.
The Agency responded to the notice of appeal asking that the appeal be dismissed for lack of jurisdiction. The Agency also argued that it was not required to issue a Standard Form - 50 regarding Complainant's temporary assignment pursuant to the settlement agreement. The Agency indicated that Complainant has not shown that the settlement agreement should be voided for lack of consideration. Complainant and the Attorney voluntarily entered into the agreement and they were aware of the terms of the agreement. In essence, the Agency argued that here was no bad faith as asserted in Complainant's appeal. The Agency stated that it has provided Complainant with the assignment per provision (1) of the agreement. The Agency requested that the Commission find the agreement to be legal and dismiss this 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).
Complainant raised several issues in his appeal. First, Complainant asserted that he was coerced into signing the agreement. We note that a settlement agreement may be voided if one of the parties establishes that assent was obtained by duress or coercion. See Mosley v. St. Louis Sw. R.R., 634 F.2d 942 (5th Cir. 1981); Hodge v. Dep't of the Army, EEOC Appeal No. 01954577 (Dec. 7, 1995). In addition, misrepresentation as to facts relevant to the complaint may cause the Commission to set aside a settlement agreement. See Wolf v. U.S. Postal Serv., EEOC Request No. 05900417 (June 14, 1990). Complainant offers nothing beyond his bare assertions to support his claim. Further, we note that Complainant had legal representation who also signed the agreement. Therefore, we find that Complainant has not established that he was coerced.
Complainant then asserted that the terms of the agreement were not legal and the agreement should be voided for lack of consideration. The Commission finds no "illegal" terms of the settlement agreement as Complainant argued. As to the issue of lack of consideration, when one of the contracting parties incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. See MacNair v. U.S. Postal Serv., EEOC Appeal No. 01964653 (July 1, 1997). Here, the settlement agreement clearly provided Complainant with the temporary detail for one year and reduced a suspension. Therefore, we find that Complainant has not shown that the agreement should be voided for lack of consideration.
Finally, we turn to Complainant's claim of breach. The regulation at 29 C.F.R. � 1614.504(a) provides further that if a complainant believes that an agency failed to comply with the terms of a settlement agreement, a complainant shall notify the EEO Director, in writing, of alleged noncompliance within 30 days of the date of when a complainant knew or should have known of the alleged noncompliance. Here, Complainant failed to first notify the Agency, in writing, of a breach claim, as required by the regulations. Complainant, instead, raised the allegation of settlement breach directly before the Commission.
Upon a review of the record, we determine that there is insufficient evidence to determine whether the Agency is in compliance of the settlement agreement. The Agency argued that it is not obligated to provide Complainant with documentation to show he had been assigned the temporary detail. The Agency provided no evidence to otherwise show that Complainant has been assigned the temporary detail. Finding no information within in the record provided by the Agency to indicate whether it met its affirmative obligations identified in the settlement agreement, we remand this matter to the Agency in accordance with the Order below.
ORDER
The Agency is ordered to conduct a supplemental investigation and there after issue a final decision whether the Agency breached the subject settlement agreement.
A copy of the new final decision on the breach claim must be submitted to the Compliance Officer as referenced below.
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 (M0815)
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 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), 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, P.O. Box 77960, Washington, DC 20013. 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
November 25, 2015
__________________
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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