0120162747
12-02-2016
Charlie K.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Charlie K.,1
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120162747
Agency No. 201626543FAA
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated July 22, 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 Program Implementation Manager at the Agency's Aviation Surface Weather Observation Network (ASWON) Program facility in Seattle, Washington.
On January 19, 2016, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(1a) The Agency agrees within fifteen (15) calendar days of the execution of this agreement, [the named] Division Manager Regional Acquisitions AAQ-500 will request that a security investigation to be conducted in the Acquisitions Branch (AAQ-530). The investigation is being conducted to determine if the following allegations are true: 1) Are there employees in AAQ-530 that feel they have been bullied by [named female manager] because of their relationship with [Complainant]?; 2) Are there employees in AAQ-530 that fear reprisal from [the named female manager] because of their relationship with [Complainant]?; and 3) Are there customers that interact with [the named female manager] that feel she has been speaking negatively about [Complainant] that could affect people's perceptions of him as a professional?
(1b) The aforementioned security investigation will be completed no later than 120 calendar days following the execution of this agreement.
(1c) No later than fifteen (15) calendar days following the receipt of the Investigative Report (IR), [the named] Manager Acquisitions Branch (AAQ-530) will convene a meeting to address findings and develop an appropriate action plan if necessary. Participants invited to the meeting will be Complainant and two named employees. Additional participants may be invited to the meeting at the discretion of [the Manager Acquisitions Branch] based on the results of the IR.
(2a) Complainant agrees execution of this Resolution Agreement constitutes a waiver of his right to pursue any and all actions, cause of actions, claims, complaints, grievances, appeals, and any other matters, known and unknown, arising out of Complainant's employment with the Agency through the effective date of this Resolution Agreement, including but not limited to 2016-26543-FAA, which were brought or could have been brought in any judicial, administrative, or other forum against the Agency, if officers, employees or agents, in their individual and official capacities, including but not limited to all claims for backpay, front pay, costs, attorney's fees, expenses and / or damages of any kind whatsoever.
. . .
(13) The Parties agree that in the event that any material term or condition of this Agreement is determined by a forum of competent jurisdiction (including the EEOC and / or the MSPB) to be not enforceable as a matter of law, such term or condition shall be severed from this Agreement and all the remaining terms and conditions shall remain in full force and effect.
(14) The Parties agree this Resolution Agreement sets forth all the terms and conditions of their Agreement and that no other promises, oral or written, have been made or relief upon executing this Agreement.
After Complainant filed his EEO harassment complaint, the female manager filed a harassment petition against him in District Court. It is undisputed that Complainant and the female manager had been in a friendly "relationship," which appeared to have soured in October 2014.
By letter to the Agency dated May 17, 2016, Complainant 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 complete its investigation within 120 days. In addition, he asserts that the investigator modified the scope of the investigation and the Agency reached the wrong conclusion when it determined unilaterally that no action plan was required.
A follow-up meeting was convened on June 29, 2016. Complainant believed that the purpose of the meeting was to review the findings of the investigation and to participate in the creation of an action plan to address the hostile environment claims. During the meeting, the questions were read and were followed by a brief "No after each statement. No additional information was given to Complainant. No action plan was presented, because the Agency determined that no action plan was appropriate because the investigator found that no violation had occurred.
During the June 29, 2016 meeting, a Human Resources representative informed Complainant of "expectations for his behavior, including where he could go" and informed him that some locations would require an escort.
The Agency Determination
The Agency issued two FADs. The first was dated July 22, 2016. The Agency reasoned that the Agency initiated the investigation within 15 calendar days of the agreement's execution, which was done. The Agency acknowledged that Complainant "is technically accurate that a breach occurred with respect to Paragraph 1b by the timeframe 26 calendar days." The Agency stated that it attempted to complete the investigation, but the investigation was not referred to the organization under June 14, 2016, which caused a 26 day delay attributed to the depth and complexity of the investigation. The Agency investigation resulted in a 2,000 page investigation. The Agency concluded that it complied with the fully-executed settlement agreement dated January 19, 2016.
This appeal followed. On appeal, Complainant maintains that the Agency has shown no sign of correcting the hostile environment being created in Complainant's work space.
On August 24, 2016, the Agency issued another "Final Agency Decision" in "further response to [Complainant's] e-mail correspondent dated July 27, 2016." The Agency again concluded that the FAA complied with term 1c 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).
In the instant case, the Agreement required the Agency to conduct an investigation and the Manager Acquisitions Branch (AAQ-530) convene a meeting to address findings and develop an appropriate action plan if necessary.
The record shows that the investigation was conducted. To the extent that the Agency's failure to complete the investigation constituted a breach, we find that the Agency cured the breach within thirty days of the date Complainant filed his breach claim.
A meeting was held. Complainant was informed of the findings, albeit without an opportunity to get further information. Further, the Agreement required that there be an action plan only if deemed necessary. Significantly, the Agreement expressly provided the Agency with latitude in determining whether an action plan was required. The Agreement was silent on the plan if the Agency found no violation and determined that no action plan was appropriate.
Further, inasmuch as the Agency conducted an investigation and convened a meeting, we find that Complainant failed to prove that the Agency was not in compliance with the terms of the Agreement.
Finally, we note that the Agreement does not preclude actions or claims that occur subsequent to the effective date of the Agreement. The record on appeal indicates that Complainant was informed after the execution of the Agreement that he was restricted to certain areas. This occurred after he filed an EEO complaint and responded to the petition filed by the named female manager. To the extent that he is raising new claims, Complainant is advised that he should contact the Agency's EEO Office. We remind the Agency that Section 717 of Title VII, as amended, requires that the Agency make all of its personnel actions free of discrimination and proactively take steps to ensure a workplace that is free of unlawful discrimination and reprisal.
CONCLUSION
Accordingly, and for the reasons stated herein, we AFFIRM the Agency's Final Determination.
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 (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
December 2, 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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