0120161048
06-08-2016
Giberto S.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Giberto S.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120161048
Agency No. IRS151328
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated November 30, 2015, 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 Customer Service Representative at the Agency's Atlanta Accounts Management, Wage and Investments Center facility in Chamblee, Georgia.
On July 2, 2015, Complainant and the Agency entered into two settlement agreements to resolve two EEO matters IRS-15-1328 (Agreement A) and IRS-15-1252 (Agreement B). The settlement agreements provided, in pertinent part, that:
Agreement A
(1B) Within fifteen days of the execution of the agreement, the Agency will rescind the proposed adverse action and memorandum dated May 25, 2015; and
(1C) "Management apologizes for the miscommunication that led to the filings (sic) of this allegation, inconveniencing the Counselee [Complainant].
Agreement B
(1A) Within fifteen (15) days of the execution of the agreement, the Agency would rescind the March 16, 2015 email with the subject "RE: Ongoing issues - Requests for Make-Up Read Time;" and
(1C) Within fifteen (15) days of the execution of the agreement, the Agency would initiate a time and attendance adjustment to restore 43.5 hours of sick leave to Complainant's leave balance.
The Agreements were signed on July 2, 2015. On July 13, 2015, the Operations Manager informed Complainant that the letter of proposed suspension referenced in Agreement A was rescinded. Complainant acknowledged that he received notice of the second rescission (Agreement B) on July 31, 2015. Regarding the initiation of the time and attendance adjustment, the record shows that the IRS provided a copy of the EEO Specialist email to the IRS Austin Payroll Center, implementing the Agency's obligation to restore 43.5 hours of sick leave. On August 27, 2015, Complainant received notification that the sick leave had been restored.
By letter to the Agency dated August 6, 2015, 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 failed to provide "a live signature copy rescinding the proposed adverse action" and "did not provide a written apology."
In its November 30, 2015 FAD, the Agency concluded that Agreement A was not breached. The Agency reasoned that the Agreement did not require a live signature and the Agreement did not require that management issue a separate apology. The Agency also noted that the apology is incorporated into the text of the Agreement. The Agency found that "Paragraph 1a of Agreement B was breached, but the breach was cured, without any harm to Complainant." The Agency then found that "there was no breach of the other terms of Agreement B."
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, we find that the Agency complied with the specific requirements of the Agreement when it acted to cure the breach. The Agreement did not require "a live signature" and the text of the Agreement incorporated an apology. No separate apology was required. For these reasons, we find that Complainant failed to show that the Agency breached the Agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
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 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), 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
June 8, 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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