Dalton E., Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Sep 15, 2017

0520170328 (E.E.O.C. Sep. 15, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Dalton E.,
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.

Request No. 0520170328

Appeal No. 0120170997

Agency Nos. 63-2015-00290
63-2015-00206

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120170997
(April 24, 2017). EEOC Regulations provide that the Commission may, in its discretion, grant a
request to reconsider any previous Commission decision where the requesting party
demonstrates 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. See 29 C.F.R. § 1614.405(c).

Complainant claimed that the Agency breached a settlement agreement that had been executed
between the parties in July 2016. In its final decision, the Agency determined that it had not
breached the settlement agreement. Complainant subsequently filed an appeal with the
Commission.

In our previous decision, the Commission found that Complainant failed to submit his appeal in a
timely manner. The Commission stated that Complainant received the Agency’s final decision
on November 28, 2016, and he did not file an appeal with the Commission until January 24,

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.
0520170328

2
2017, after the expiration of the 30-day filing period. The Commission stated that Complainant
did not provide adequate evidence to justify an extension of the 30-day filing period.

In his request for reconsideration, Complainant states that he received the Agency’s final
decision on December 1, 2016, rather than November 28, 2016, and that he filed an appeal with
the Commission on December 27, 2016. Complainant submits certified mail receipts
postmarked December 27, 2016, in support of his position.

In response, the Agency asserts that Complainant’s appeal was untimely whether he received the
final decision on November 28, 2016, or December 1, 2016. The Agency points out that
Complainant had previously said he filed his appeal on December 22, 2016, rather than
December 27, 2016. The Agency states that one of the certified mail receipts has its tracking
number partially obscured and therefore it cannot be tracked in its online system. The Agency
states that the other receipt contains a complete tracking number but shows that the letter was
delivered to a zip code other than the one specified in the final decision. Further, the Agency
asserts that both certified mail receipts are partially obscured in a way that makes it impossible to
see the bottom of each receipt, which lists the address to which each piece of mail was sent.
According to the Agency, that makes it impossible to verify that Complainant sent either of the
two letters to the correct address.

Upon review of the record, we observe that Complainant received the Agency’s final decision on
November 28, 2016. Complainant mailed his appeal to the Commission on December 27, 2016,
which was within the thirty-day filing period. It is evident from the material Complainant
submits on appeal that he timely mailed his appeal to the Commission’s zip codes 20507 and
20013, and the Commission has evidence that it received the appeal on January 3, 2017. The
Commission erred in not docketing the appeal with a filing date of December 27, 2016.
Therefore, after reconsidering the previous decision and the entire record, the Commission finds
that the request meets the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to grant the request. We shall next address the merits of Complainant’s appeal that
the Agency breached the settlement agreement.

Complainant and the Agency entered into a settlement agreement in July 2016 to resolve his
EEO complaints and an appeal before the Merit Systems Protection Board. The settlement
agreement provided, in pertinent part, the Agency agrees to:

3.b. SUPERVISOR. Change [Complainant’s] first-line supervisor to [new supervisor].
[New supervisor] will perform all responsibilities previously performed by [prior
supervisor], including the delegation of [Complainant’s] case assignments. This change
will be accomplished within seven (7) days of the effective date of this Agreement. The
Agency agrees that [new supervisor] will perform the duties of [Complainant’s]
supervisor for a period of not fewer than twelve months. Nothing in this Agreement shall
prevent the Agency from assigning a new supervisor, other than [prior supervisor] or
[other management official], for [Complainant] at some date in the future if, at the
Agency’s direction, it concludes that there is a business-related need for such a change.
0520170328

3

3.c. [Complainant] will be trained to work the American Community Survey (ACS), and
ACS work may be assigned to him, as appropriate, when such work is available, as
determined by the Agency. [Complainant] will be eligible to take the first available ACS
training in his geographic area following the effective date of this Agreement.
[Complainant] understands that case assignments will be made at the discretion of his
supervisor, and that this Agreement does not guarantee him any specific number of ACS
case assignments.

3.d. [Complainant] is not prohibited from receiving or accepting [Agency] case
assignments located outside his home county of Cass County, ND. [Complainant]
understands that any case assignments outside Cass County, ND will be made at the
discretion of his supervisor. [Complainant] also understands that he is not guaranteed
assignments outside Cass County, ND.

By e-mail dated October 21, 2016, Complainant informed the Agency that it had breached
section 3.b. of the settlement agreement. Complainant claimed that his former supervisor was
still listed as his supervisor and that he was concerned she was still monitoring his payroll and
cases. According to Complainant, his new supervisor is not controlling his assignments as she
has no knowledge of how his assignments are generated for the Current Population Survey, his
current assignment, or for the Demographic Area Address Listing (DAAL). Complainant further
claims that his DAAL case assignments disappeared.

In its final decision dated November 18, 2016, the Agency determined that it had not breached
the settlement agreement. The Agency stated that Complainant failed to demonstrate that his
prior supervisor is delegating or giving him cases or performing any other first-line supervisory
role for him. The Agency acknowledged that the prior supervisor was still listed in an internal
database as Complainant’s supervisor, but stated it had taken steps to address this administrative
error. The Agency determined that it thus promptly cured any breach of the settlement
agreement that may have occurred and that it is in substantial compliance with the settlement
agreement.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency stated that it interviewed his new supervisor
as part of its investigation into his breach claim but that she denied being interviewed by anyone
concerning this matter. Complainant further stated that his new supervisor has not spoken to him
about her role in his chain of command.

In response, the Agency asserts that Complainant’s new supervisor is his first-level supervisor
with regard to his assignments, cases and payroll. As for the prior supervisor still being listed as
Complainant’s supervisor, the Agency stated that this was occurring due to the software in
Office 365 Outlook containing a function that guesses at the likely chain of command. The
Agency acknowledged that the reporting system CHRIS (Census Human Resources Information
0520170328

4
System) listed the prior supervisor as Complainant’s supervisor, but the Agency asserted that the
current supervisor has been performing the responsibilities previously done by the prior
supervisor. Moreover, the Agency stated that it immediately took steps to address the
administrative error in CHRIS. The Agency argued that Complainant presented no evidence that
the listing in CHRIS had any bearing on the actual function of his job or his chain of command.
The Agency maintained that Complainant did not submit evidence that it has acted in bad faith,
and that it is in substantial compliance with the settlement agreement.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.504(a) provides that a 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 apply. See
Herrington v. Department of Defense, 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. Department
of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990). In ascertaining the intent
of the parties with regard to the terms of the settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon O v. United States Postal Service, 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
Engineering Services Co., 730 F.2d 377 (5th Cir. 1984).

Complainant maintains that the Agency breached section 3.b. of the settlement agreement based
on his new supervisor not being in charge of his case assignments. Complainant further argues
that his prior supervisor is still listed as his supervisor on certain Agency systems. Upon review
of the record, we discern no persuasive evidence that Complainant’s prior supervisor has retained
control over any aspect of Complainant’s position in what would be considered a supervisory
capacity. Complainant argues that his new supervisor has no knowledge of how his assignments
are generated for the Current Population Survey, his current assignment, or for DAAL.
However, Complainant has not offered any credible evidence to support this contention and he
has not refuted the Agency’s assertion that the new supervisor is his first level supervisor with
regard to his assignments, cases and payroll.

With regard to Complainant’s argument that the prior supervisor was still listed as his supervisor,
we observe that the Agency acknowledges that its Outlook software caused that result and that
the prior supervisor was listed as Complainant’s supervisor in the CHRIS operating system. The
Agency asserts that to the extent a breach occurred, it has cured the breach by remedying the
error in its internal database. We discern no indication that this mistake in the database was an
act of bad faith as the prior supervisor was no longer exercising supervisory control over
Complainant.
0520170328

5
Moreover, Complainant has not shown that the Agency failed to cure this error in its internal
database. We find that the Agency was in substantial compliance with the terms of the
settlement agreement.

CONCLUSION

After reconsidering the previous decision and the entire record, the Commission finds that
Complainant’s request meets the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to grant the request. The decision of the Commission in Appeal No. 0120170997 is
reversed. We further find that the Agency’s determination in its final decision that no breach of
the settlement agreement occurred is AFFIRMED.

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 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. 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.
0520170328

6
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

September 15, 2017
Date