0120131014
05-05-2015
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120131014
Agency Nos. ARHOOD11JAN00138;
ARHOOD11DEC05332
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated November 28, 2012, 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 complaint, Complainant worked as a Supervisory Physician, Medical Evaluation Board at the Agency's Carl R. Darnell Army Medical Center facility in Fort Hood, Texas.
On September 17, 2012, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(3d) the agency will provide the complainant a written reply to his request for reasonable accommodation that will reflect that the agency cannot reasonably accommodate his request;
(3f) the agency will in good faith with the help of [Civilian Personnel Advisory Center] CPAC assist the complainant in his request to the Office of Personnel Management (OPM) for a FERS Disability Retirement. The complainant acknowledges that he is responsible for both initiating and submitting this package. The agency further agrees that it will specifically support his request by having the Deputy Commander for Administration make [certain stated] affirmations on SF3112b and 3112d;
(3g) the complainant retains the right to have his attorney review his application package to OPM for a FERS Disability Retirement before he submits it to OPM; and
(3i) the agency will pay to the complainant $8,000 in medical compensatory damages. This payment will be processed electronically through the General Funds Enterprise Business System (GFEBS) based on account information provided by the complainant. Such information will be provided within ten days of the signing of this agreement.
On October 18, 2012, and by letter to the Agency dated October 25, 2012, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency reinstate his complaint. Specifically, Complainant alleged that the Agency: 1) failed to provide a factually correct letter that reasonable accommodation cannot be made, referencing the most up-to-date form CA 17; 2) has not, in good faith, assisted Complainant in timely assembling his forms; 3) did not give him an opportunity to review the retirement package with his Union representative or attorney; and 4) ignored Complainant's attempts to provide and solve the requirements of GFEBS. Complainant also claimed that he was denied the opportunity to properly check out his belongings from the workplace before he left the premises.
Provision 3d
The Agency issued a memorandum, dated September 17, 2012, in which the Agency provided Complainant a written reply to his request for reasonable accommodation that stated that the agency cannot reasonably accommodate his request. Per Complainant's request, the memorandum was later updated to reference a more recent CA-17 date than the July 27, 2012 date that was originally referenced in the Agency's memo. On September 30, 2012, the Agency issued Complainant the corrected memorandum.
Provision 3f
Beginning September 17, 2012, the Complainant met with the Civilian Personnel Advisory Center (CPAC) specialist for the purpose of obtaining assistance for the Complainant in completing his FERS Disability Retirement package. The CPAC specialist advised Complainant that he could also have the assistance of another specialist, if he wanted to have the specialist who regularly assisted employees with their retirement packages.
Provision 3g
Because Complainant had not picked up his retirement package, the Agency official mailed the package to Complainant on October 31, 2012. Complainant did not have his attorney review his application package. The record includes many emails between Complainant and the Agency officials. The Agency maintains that Complainant chose not to exercise his right to have the retirement application reviewed by his attorney because he had not picked up the package. So, the package was mailed to him.
Provision 3i
The record shows that Complainant did receive the monetary payment that was made on October 26, 2012. With regard to the disbursement of the monies, the Agency maintains that Complainant did not provide the required information to CRDAMC until October 18, 2012. The disbursement by DFAS was made on October 26, 2012.
In its November 28, 2012 FAD, the Agency concluded that it was in full compliance with the terms of the agreement. The Agency reasoned that "while the complainant may have expected that each of these NSA requirements would be executed in a different manner, the agency did discharge all its duties as reflected in the record."
This appeal followed.
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 that the agreement is valid and binding on both parties.
In the instant case, the Agency agreed to execute specific steps, such as provide a written reply to Complainant's request for reasonable accommodation, assist him with Disability Retirement request, allow him the right to have his attorney review his application and pay him $8,000.
The record shows that the Agency fulfilled its obligation under the terms of the agreement. The Agency provided Complainant a memorandum stating that the Agency could not reasonably accommodate three hours work per day and used the most current CA 17 as the basis for its statement.
With regard to paragraph 3f, the record shows that the Agency assisted Complainant with his disability retirement application and that Complainant had the opportunity for review of his retirement package. Those were the requirements set forth in the Agreement; and each of those was met.
Further, the record shows that the Agency met its obligations within 35 days of the date that Complainant provided the Agency with notice of his breach claims. We, therefore, find that to the extent that there was a breach, the Agency's actions cured the breach.
Finally, with regard to Complainant's claim that regarding his personal items, staff search for his personal belongings and returned the boxes to Complainant, we find no reference to this in the agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's Determination, finding no breach of the agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). 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 (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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 5, 2015
__________________
Date
2
0120131014
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131014