0120131987
05-22-2014
Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Indian Health Service), Agency.
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.
Appeal No. 0120131987
Agency No. HHS-IHS-0438-2011
DECISION
On September 4, 2012, via facsimile from a Congresswoman, the Equal Employment Opportunity Commission (EEOC or Commission) received Complainant's appeal, which was dated March 24, 2012, from a February 27, 2012, determination by the Agency that it complied with the terms of the settlement agreement into which the parties entered. For the reasons set forth below, the appeal is accepted. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
When Complainant alleged that the Agency breached their settlement agreement, he was a former employee whose last Agency job was a Health System Specialist at the Indian Health Service (IHS) Pine Ridge Service Unit in Pine Ridge, South Dakota.
The settlement agreement, as amended, became effective on January 16, 2011 (seven days after the last signature on the amendment). It provided, in pertinent part, that in exchange for the Agency canceling its proposed removal of Complainant dated October 6, 2011, the following would occur:
1. [Complainant] Voluntarily accepts to change to a lower grade of Health System Specialist, GS-0671-14, Step 10 at the Pine Ridge Service Unit, Pine Ridge, SD, effective January 1, 2012;
2. The Pine Ridge Service Unit will review and consider Grant writing training necessary in order for the employee to accomplish his job duties and responsibilities associated with his new position;
3. The Pine Ridge Service Unit will provide office space and equipment needed to perform the duties of this position;
4. Agrees to a Retention Allowance of $6,997.00 for (1) year for calendar year 2012;
5. In exchange for the above, [Complainant] agrees to voluntarily resign from the Indian Health Service (IHS), with an effective date of December 31, 2012, unless, on or before December 31, 2012, [Complainant] is granted a disability retirement or is successful in obtaining new employment, which may include a position reassignment to another location in the Indian Health Service;
6. ...This Agreement constitutes a full and final settlement of all claims...that the Employee may have against the Agency arising from his employment....
7. The Employee voluntarily agrees to withdraw the following EEO complaint: HHS-HIS-0438-2011, and MSPB Appeal Case DE-3443-12-0009-I-1;
8. [Language designed to waive Complainant's Age Discrimination in Employment Act (ADEA)] claims under the Older Workers Benefits Protections Act (OWPBA)];
9. All records and the proposed removal action document and related information regarding this complaint will be purged from the employee's Official Personnel Folder and Human Relations/Employee Relations Folder;...
11. The 2011 final performance rating for the time served as the Pine Ridge Service Unit in the capacity of CEO will be at the Fully Successful rating and signed by the Acting Deputy Director of Field Operations;
12. The Agency agrees to restore the employee's Sick Leave for the time period of August 10, 2011 through November 10, 2011, for total of (520) hours;
13. [Language regarding the payment of attorney fees];...
19. If Complainant believes that the Agency has failed to comply with the terms of this Agreement, Complainant shall notify...Senior EEO Specialist [1], Diversity Management and Equal Employment Opportunity, Indian Health Service [address provided], in writing of the alleged noncompliance within 30 days of when Complainant knew or should have known of the alleged noncompliance....
On February 13, 2012, the Agency issued a letter to Complainant notifying him that EEO complaint HHS-HIS-0438-2011 and MSPB Appeal DE-3443-12-0009-I-1 were withdrawn pursuant to the settlement agreement. This letter was issued by the Agency's Director 1 of EEO Compliance and Operations Division, Office of the Secretary, Department of Health and Human Services. She wrote therein that if Complainant believed there was a breach of settlement agreement, he must notify her (the settlement agreement provided that if Complainant believed there was a breach, he should write Senior EEO Specialist 1, who was with IHS).
In a writing to Director 1 dated February 21, 2012, Complainant alleged that the Agency breached settlement agreement, as amended, terms 3, 4, 9, 11 and 12.
On February 27, 2012, EEO Specialist 1 issued a letter on behalf of the Agency to Complainant indicating it was a "Final Decision." Therein, the Agency found that it complied with settlement agreement terms 3, 4, 9, 11 and 12, as well as term 13. The letter in the record does not contain appeal rights notifying Complainant of his right to file an appeal with the EEOC.
In his appeal dated March 24, 2012, which the EEOC received on September 4, 2012, Complainant, by and through his attorney, pointing to the February 13, 2012, letter argues that Director 1's office should have investigated his allegation of breach. He contends that IHS breached the settlement agreement, and it was a conflict of interest for Senior EEO Specialist 1's office (who is with IHS) to make the February 27, 2012, determination. He argues that Senior EEO 1's office lost its jurisdiction to resolve the matter to Director 1's office.
In opposition to the appeal, the Agency argues that the appeal was untimely filed. It argues that in March 2012, Complainant's attorney received its February 27, 2012, determination that there was no breach, and never filed his appeal with the EEOC.1 The Agency argues that the Congresswoman's September 4, 2012, facsimile to EEOC's Office of Legislative Affairs should not have been considered a filing of an appeal by Complainant. It argues that Complainant knew the proper address to file an appeal with the EEOC because it is written on header of the appeal. The Agency writes that Director 1's office only received the appeal on September 27, 2012, after the EEOC sent a copy of the appeal thereto, and the same day Director 1 forwarded a copy to EEO Senior Specialist 1's Office. It argues that this is not service by Complainant and is another reason his appeal should not be considered filed. The Agency also argues, in effect, that even if the September 4, 2012, facsimile to the EEOC is considered an appeal filing, it was beyond the 30 day time limit to file an appeal, and hence was untimely.
In opposition to the appeal the Agency argues that, contrary to Complainant's contention, EEO Specialist 1's office was the proper office to issue the final determination finding no breach. It notes that the settlement agreement provides that a claim of breach should be made to that office. The Agency argues that there is no conflict of interest. It notes that EEO Specialist 1's office serves as an EEO office for IHS, and is in a better position to gather information on breach than Director 1's office.
Next, the Agency argues that it complied with settlement agreement terms 3, 4, 9, 11, and 12, and points to documentation in support thereof. It argues that it complied with the settlement agreement.
On December 31, 2012, relying on term 5 of the settlement agreement, the Agency involuntarily effected Complainant's retirement. Complainant, represented by his counsel, filed an appeal regarding this to the Merit Systems Protection Board (MSPB). In its initial decision dated July 24, 2013, the MSPB recounted that Complainant contended, in part, that the Agency's breach of the settlement agreement made his retirement no longer enforceable. The MSPB recounted that Complainant, through his attorney, argued that the Agency's non-compliance included delays in implementing settlement agreement terms 3, 4, and 11, delaying providing proof of the implementation of term 9, and not implementing term 12.
The MSPB found that while it will consider a settlement agreement reached outside of an MSPB proceeding to determine its effect on an action before the MSPB, it has no authority to enforce or invalidate a settlement agreement reached in another forum.2 It noted there was no indication that the EEOC or any judicial forum invalidated the retirement provision in light of alleged breaches. It found that Complainant did not allege facts which would show that his retirement was involuntary - that the Agency significantly interfered with his opportunity to geographically transfer to another position. It noted that the telephone/computer access problems of which Complainant complained were resolved in the spring of 2012, and Complainant admitted to receiving his 2011 performance evaluation in January 2012. It found that even assuming that the Agency afforded Complainant only a "closet like" office and otherwise interfered with his ability to best perform the duties of his Grants Manager position, such actions would not represent intolerable working conditions given the short duration of his position. The MSPB dismissed Complainant's appeal on the grounds that he did not allege facts, which if proven true, would show that his resignation was involuntary.
Complainant, represented by his counsel, filed a petition to review the initial decision with the Board. On April 18, 2014, the Board denied Complainant's petition.
ANALYSIS
As an initial matter, we deem Complainant's appeal to be timely filed. He sought to challenge the Agency's February 27, 2012, determination that the Agency did not breach the settlement agreement, as evidenced by the language in his appeal dated March 24, 2012. Because the Agency's determination did not contain appeal rights to the EEOC, which would notify Complainant of the address to file his appeal and time limit therefore, we deem the appeal to be timely filed. Moreover, while Complainant is required by our regulations to copy the Agency on his appeal, nothing in our regulations indicates that failure to do so defeats an appeal filing. We note, in any event, that the Agency's determination did not notify Complainant of this requirement, and the Agency received a copy of the appeal from the EEOC.
Next, we find that there was no conflict of interest in EEO Specialist 1's office issuing the Agency's February 27, 2012, determination of no breach. We understand that this office is with IHS, but as an IHS EEO office it was appropriate for it to issue a determination on breach.
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).
The Agency submitted documentation that it complied with settlement agreement term 4. Specifically, it submitted a Notification of Personnel Action, Standard Form 50 reflecting that on February 14, 2012, it approved the personnel action effective January 1, 2012, awarding Complainant 5.57% of his pay to be paid bi-weekly to December 29, 2012. Complainant does not dispute the Agency's argument this equaled the agreed upon sum, and the above formula is consistent with paying Complainant $6,997.
Regarding settlement agreement term 9, in his February 21, 2011, claim of breach, Complainant contended that he was not provided evidence that the Agency, as agreed, purged his records, and as of January 17, 2012, a letter of detail was still was in his Official Personnel File (OPF). The record contains an email dated February 22, 2012, by an IHS Human Resources Specialist (ER/LR) confirming that ER/LR files regarding Complainant's proposed removal were purged, and she also verified that Complainant's OPF contained no documentation regarding the proposed removal action. On April 17, 2013, the above individual sent another email "to reconfirm that the information pertaining to [Complainant] has been purged per the settlement agreement." Complainant does not dispute this.
In his February 21, 2012, claim of breach, Complainant contended that the Agency violated settlement agreement term 11 because he did not receive his 2011 appraisal rating of fully successful or higher by the deadline of January 31, 2012. The Agency submits a copy of a replacement appraisal covering the period of January 1, 2011 to December 31, 2011, which was completed on February 15, 2012, showing a rating of Fully Successful, and documentation that Complainant was sent a copy thereof on February 23, 2012. The Agency correctly argues that the settlement agreement did not contain a deadline of January 31, 2012.
With regard to settlement agreement term 12, the Agency submitted documentation showing that it restored 520 hours of sick leave for Complainant's on the pay period ending February 25, 2012.
Regarding settlement agreement term 3, in his February 21, 2012, claim of breach, Complainant wrote that his office space and equipment "were not adequate," that no office space was available on his first day in his new position, and that when he reported on January 2, 2012, he had to find his own office, desk, phone, and computer. In response, the Agency submits various emails. In a January 3, 2012, email, apparently to Facilities Management, Complainant referred to settlement agreement term 3, which was not changed by the subsequent amendment, and wrote that while he had a laptop, he needed a docking station. An internal Agency email by Facilities Management the same date indicates Complainant will need a phone, and to check with him if he wants to keep his old phone number. Complainant sent another email on January 12, 2012, apparently to Facilities Management, noting that his settlement agreement entitled him to office space but it was not working well because there were too many disruptions. He made no mention of equipment.
The Agency argues that while Complainant wrote in his claim of breach that his office space was inadequate, he did not explain why. It argues that on January 3, 2012, Complainant admitting to having a laptop, and he wrote in his February 21, 2012, allegation of breach that he found his own office, desk, phone and computer on his first day, evidencing he had office equipment, as agreed. Complainant does not contest this on appeal or anywhere else in the record. Based on the record before us, we find that Complainant was provided office space and equipment, as promised.
Absent specified time frames for performance, the Commission expects that the terms of a settlement agreement will be implemented within a reasonable period of time. Frazier v. Department of the Air Force, EEOC Appeal No. 01A21146 (April 17, 2003). The settlement agreement was not effective until January 16, 2012. We find that the Agency implemented the terms of the settlement agreement within a reasonable amount of time.
The Agency's final determination of no breach is AFFIRMED.
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 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), 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 22, 2014
__________________
Date
1 The Agency submits an April 2013 email to it by the EEOC, Office of Federal Operations, confirming that the EEOC had no record of receiving Complainant's appeal prior to the Congressional Inquiry on September 4, 2012, and that the appeal would now be docketed. It was docketed in May 2013.
2 The MSPB found that Complainant sought a non-compliance ruling from the EEOC, but the EEOC had not issued a ruling apparently because neither party submitted a copy of Complainant's non-compliance allegations to the EEOC.
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0120131987
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120131987