[Redacted], Nicholas B., 1 Complainant,v.David Bernhardt, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Jul 30, 2020

Appeal No. 2019002716 (E.E.O.C. Jul. 30, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nicholas B.,1 Complainant, v. David Bernhardt, Secretary, Department of the Interior (National Park Service), Agency. Appeal No. 2019002716 Agency No. DOINPS150568 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) contesting that the Agency breached the terms of an April 30, 2018 settlement agreement.2 See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND During the period at issue, Complainant worked as a Law Enforcement Park Ranger, GL-9, at the Agency’s Visitor and Resource Protection Division, Channel Island National Park in Ventura, California. Believing that he had been discriminated against and subjected to discriminatory harassment based on national origin, race, and in reprisal for prior protected EEO activity, Complainant contacted an Agency EEO Counselor. 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. 2 There is no indication in the record that the Agency issued a decision in response to Complainant’s allegations of settlement breach. 2019002716 2 On April 30, 2018, Complainant and the Agency entered into a settlement agreement to resolve this matter, which had been pursued through the EEO complaint process. In pertinent part, the April 30, 2018 settlement agreement included the following provisions: Provision 14. Terms: The Agency hereby agrees to: b. Expunge from all records, except Solicitor’s Office records, to include his e-OPF, Channel Islands NP, the Mediterranean/Mojave SHRO office, and the PWR-Regional Office, Complainant’s May 27, 2015 removal action. In lieu of removal, the agency will generate [an] SF- 50 placing Complainant in a non-pay status (i.e., LWOP) at Channel Islands National Park from May 28, 2015 until January 31, 2016. Finally, the agency will generate an SF-50 showing Complainant resigned his LE ranger position effective January 31, 2016. Complainant hereby acknowledges and agrees that it is the intent of the parties that Complainant receive no pay or benefits from his placement on the agency rolls from May 28, 2015 through January 2016. In recognition of this intent, Complainant hereby affirmatively waives any and all entitlement to, and/or receipt of, any pay or benefits whether known or unknown which he may accrue as a result of being placed on the Channel Islands National Park payroll in non-pay status from May 28, 2015 until January 31, 2016. If remarks are required on the resignation SF-50, the following sentence will be used: Employee resigned to accept a park ranger position with Santa Catalina Island Conservancy. Record expungement will be completed within sixty (60) days of the effective date of this agreement. Complainant will be provided all originals and copies of the paper records expunged by the Agency within sixty (60) days of the effective date of this agreement. d. At the expiration of the sixty-day expungement period, provide Complainant a hard copy of his e-OPF. Additionally, allow Complainant’s representative to inspect the electronic version of Complainant’s e-OPF. Inspection will take place at Channel Islands National Park on a date to be mutually agreed upon by Complainant’s representative and the Channel Islands HR Specialist. g. Expunge all Agency records with exception of those maintained by the Solicitor’s Office related to Complainant’s LE commission suspension, revocation, and appeal of the revocation to include, but not limited, to records maintained by the: Channel Islands NP, PWR-Mediterranean and Mojave SHRO, PWR-Regional Director and PWR-Employee Relations Offices. These records include, but are not limited to: Office 2019002716 3 of Professional Responsibility report and transcripts, Board of Inquiry findings and recommendations and all correspondence related to the suspension, revocation, and appeal/decision of the revocation. Complainant will be provided all originals and copies of the records expunged by the Agency within sixty (60) days of the effective date of this agreement. The Agency represents it will not release any information regarding the expunged records to any party within the Agency, to another Agency, current/prospective employer in the public/private sector or any third party, and the Agency will not consider in any manner the expunged records in the hiring process if Complainant applies for employment with the Agency in the future. Information regarding the expunged records will only be available pursuant to an order of a court of competent jurisdiction. By letter, dated July 24, 2018, Complainant alleged breach. In this letter, Complainant stated that the Agency did not fully implement provision 14(b) until four days after the agreed upon timeframe. Complainant explained that the Agency instructed him, on May 31, 2018, to submit and complete a written letter of resignation and a Health Benefits form (SF-2809). Because he was currently deployed on active duty with the US Army, Complainant stated that he requested that his representative sign these forms on his behalf. However, Complainant indicated that the Agency waited until June 25, 2019, to inform him that there was no requirement for a written resignation. Complainant further asserted that the Agency informed his representative also on June 25, 2019, that the purging and collection of documents would be completed by the June 29, 2018 deadline. Meanwhile, Complainant explained that on June 27, 2018 the Agency generated a SF-50 reflecting that he had “resigned for unknown reason.” Complainant stated that his representative informed the Agency that the language on the SF-50 reflecting that he “resigned for unknown reason” was not in compliance with the terms of provision 14(b). Nevertheless, Complainant stated that the Agency corrected these issues and complied with the terms of provision 14(b) on July 3, 2018, four days after the agreed upon timeframe. For provision 14(d), Complainant argued, in part, that the Agency did not provide his representative a hard copy of his e-OPF until July 11, 2018, which was twelve days after the agreed upon timeframe. For provision 14(g), Complainant stated that the Agency did not provide his representative all original records expunged by the Agency related to the suspension, revocation, appeal of the revocation of his LE commission until July 6, 2018, which was seven days after the agree upon timeframe. 2019002716 4 Complainant also stated in the letter that other specific terms of provision 14(d) have not been met by the Agency and were currently outstanding. Complainant explained that the Agency has not provided his representative an opportunity to review the electronic version of his electronic e-OPF as specified in provision 14(d). Complainant acknowledged that his representative and the Agency agreed to review his e-OPF on July 17, 2018, but his representative discovered during this meeting that Complainant’s Last Record of Leave Data (SF-1150) had not been filed. Although Human Resources subsequently provided a hard copy of the SF-1150, Complainant indicated that the form was not incompliance with the settlement agreement because it included the word “Correction” on it. Complainant asserted that the Agency agreed to allow his representative to review his e-OPF on July 26, 2016. However, the Agency never responded to Complainant’s representative’s request to remove the word “Correction” from SF-1150 at the time of this review. Therefore, Complainant reasoned that the Agency had not completely complied with provision 14(d). Finally, Complainant requested sanctions of $1,000 for each day the Agency failed to timely execute the agreed upon settlement terms. The Agency did not respond to Complainant’s letter alleging breach of the settlement agreement. On appeal, Complainant concedes that the Agency has complied with all terms at issue in the settlement agreement. Complainant indicates that the one outstanding issue explained in his July 24, 2018 notice was met 28 days after the agreed upon timeframe. Specifically, Complainant states that the Agency complied with provision 14(d) when his representative reviewed his e- OPF on July 26, 2018 and received a hard copy of his SF-1150 with the annotation “Original” instead of “Corrected.” ANALYSIS AND FINDINGS 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). 2019002716 5 By Complainant’s own admission on appeal, the Agency has complied with the terms of the settlement agreement at issue. Therefore, we note that the only issue Complainant raises is that the Agency failed to timely comply with the terms of the settlement agreement. The Commission, however, has found that failure to satisfy a time frame specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, especially when all required actions were subsequently completed. Mopsick v. Department of Health and Human Services, EEOC Appeal No. 0120073654 (August 17, 2009) (citing Lazarte v. Department of Interior, EEOC Appeal No. 01954274 (April 25, 1996)). Therefore, we find that the Complainant has not demonstrated that the Agency is not in substantial compliance with the terms of the April 30, 2018 settlement agreement. 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. 2019002716 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 July 30, 2020 Date