0120152467
03-14-2017
Grady K.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Grady K.,1
Complainant,
v.
Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120152467
Agency No. ARHOOD13APR01039
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision (FAD), dated June 5, 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 was an employee at the Agency's Directorate of Public Works facility at Fort Hood, Texas. On May 15, 2013, Complainant filed an EEO complaint.
On August 27, 2013, Complainant and the Agency entered into a settlement agreement to resolve the EEO matter. The settlement agreement provided, in pertinent part, that:
(3f) the Parties agree that any and all disciplinary records maintained by DPW for [Complainant], either finalized or contemplated, will be purged. These documents will include all records and related documents, including those obtained or otherwise solicited for the purpose of establishing an alleged misconduct record to discipline Complainant. (The Agreement identified a list of documents that will be purged.);
(3g) [The named] Human Resources Specialist, Labor/Management Employee Relations, Civilian Personnel Advisory Center (CPAC), shall verify upon request of [Complainant] made not sooner than 30 days after the execution of this agreement, that [Complainant's] records as identified in paragraph "3f" above have been purged. This verification shall be in writing from [the named Human Resources Specialist] to [Complainant] at his last provided address.
In September of 2013, the Director, Fort Hood EEO released two documents (emails) to the Fort Belvoir Army Agency. The two email documents were dated February 15, 2013 and March 19, 2013. The release occurred shortly after the Agreement was executed in August of 2013.
On April 6, 2015, Complainant received copies of the two documents from the Army's Office of the Administrative Assistant to the Secretary. One email was dated February 15, 2013, authored by the named management official, Subject: Disruption to the Workplace. The second email was similarly sent by the same management official, and was dated March 19, 2013, Subject: "MFR and /or Tuesday, March 19, 2013."
By letter to the Agency, dated April 25, 2015, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to purge the two documents from the records and refused to sign a confirmation that the documents were purged. Complainant stated that he believed those documents should have been purged, pursuant to paragraph 3f, and were instead forwarded by the Fort Hood EEO Manager to the Fort Belvoir Agency.
Complainant initially requested that his complaint be reinstated. He has since amended his request to ask that the Agency purge the two documents from all data bases. Complainant maintains that the Agreement encompasses "any and all" documents that currently exist and those should be destroyed and purged.
In its FAD, the Agency reasoned that the documents were released in response to a Freedom of Information Act (FOIA) request from Complainant and that the FOIA request predated the execution of the Agreement. The Agency reasoned that it purged the databases within 30 days of the NSA and recertified in April 2015 that the Activity remained in compliance with the NSA. The Agency stated that the documents identified in Term 3f were purged from the Fort Hood DPW, the Employee Assistance Program, and CPAC files and that the Human Resources Specialist "again confirmed on April 15, 2015, that those documents were in fact purged."
Next, the Agency reasoned "the fact that the Complainant's FOIA request predated the NSA provided a logical explanation regarding why the emails were still in existence in 2015." The Agency stated that the Fort Hood DPW Director confirmed that the two documents cited by Complainant had also been purged and its documentation "demonstrates the Activity's compliance with Term 3f, which required purging of documents maintained by DPW." The Agency concluded that the claim of noncompliance has not been substantiated and that, "to date, management is in full compliance with the terms of the NSA." The Agency referenced the statement verifying that "all documents listed in the 27 August 2013 NSA (paragraph 3f) have been purged from DPW records. This includes the two documents listed below." This appeal followed.
CONTENTIONS ON APPEAL
Complainant maintains that the Agency's "proffered FOIA rationale is not related to the central issue, i.e., breach of the NSA." Complainant asserts that the manager "refused to contact the HQ DA, Fort Belvoir, where the two subject documents currently exist and provide a confirmation that those two documents were purged.
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 provided a specific list of documents to be purged. In addition, the Agreement expressly stated that the "parties agree that any and all disciplinary records maintained by DPS for [Complainant], either finalized or contemplated, will be purged. This required the purging of any and all records and related documents, including those obtained or otherwise solicited for the purpose of establishing an alleged misconduct record to discipline Complainant. Two documents which fit the scope of the terms of the Agreement were not purged. In September of 2013, the EEO Manager forwarded those documents to a different location. We find therefore, that Complainant established that a breach occurred.
In addition, Complainant claims that the emails remain in existence. The record before us does not contain sufficient evidence that the Agency purged all of the documents and emails.
Where we find a breach, the Commission has two options to remedy the situation: 1) reinstate the complaint or 2) order specific performance. In this case, Complainant has requested that the Commission require the purging of the documents and verification that all of the documents have been purged, consistent with the terms of the Agreement. We grant Complainant's request for specific performance.
CONCLUSION
We REVERSE the Agency's Determination and REMAND the matter to the Agency for actions consistent with the Order below.
ORDER
Within thirty (30) calendar days of the date this decision was issued, the Agency is ordered to search its databases and purge from its databases the two emails, referenced as: 1) An email dated February 15, 2013, authored by the named management official, Subject: Disruption to the Workplace; and 2) An email from the same named management official, dated March 19, 2013, Subject: MFR and /or Tuesday, March 19, 2013. The Agency is further directed to conduct a search of its databases and purge any other emails and / or documents that pertain to actual or planned disciplinary action against Complainant. The Agency shall acknowledge to the Complainant that it has complied with the Order with a signed affidavit from the official providing the verification, in the event that the named Human Resources Specialist, specified in paragraph 3g is not available to provide proof of compliance.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the documentation must be sent to Complainant and to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
March 14, 2017
__________________
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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