0120120633
10-10-2012
Robert T. Molleur, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency.
Robert T. Molleur,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Natural Resources Conservation Service),
Agency.
Appeal No. 0120120633
Agency No. NRCS-2010-00883
DECISION
Complainant filed a timely appeal with this Commission, after the Agency did not issue a determination regarding a claim of breach of a July 20, 2011 settlement agreement. The Commission accepts Complainant's appeal. See 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
During the period at issue, Complainant worked as a Program Analyst at the Agency's Beltsville, Maryland facility.
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On July 20, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter.
The July 20, 2011 settlement agreement provided, in pertinent part, that:
(A) Within Forty-Five (45) days of the Complainant's signature on this Settlement Agreement, the Agency shall promote, [Complainant], retroactively, with back pay, beginning August 23, 2010, from a GS-14-08 to a GS-14-10.
a. This promotion will be in effect until the Complainant either accepts a GS-15 promotion in the future, or should he choose to retire from the Agency.
b. The back pay, specifically, is effective beginning August 23, 2010 and ending on the effective date of the step increase to a GS-14 step 10, which would be on the date of the signed Agreement (July 20, 2011).
(B) Within Fifteen (15) days of the Complainant's signature on this Settlement Agreement, [Complainant's] 2010 Performance Rating will be returned to the "Superior" rating, versus the current "Fully Successful" rating.
(C) It is agreed that [Complainant] will be primarily assigned duties that utilize his exceptional writing capabilities to the fullest extent possible and also provide him with the opportunity to advise on pertinent conservation program policy matters making full use of his multi-agency (FSA and NRCS) experience and institutional knowledge beginning with his direct role the formulation of the Environmental Quality Incentives Program in 1996. This will be addressed by the FAPD Division Director in a revision to the official position description.
By letter to the Agency dated October 11, 2011, Complainant alleged breach, and requested that the underlying matter that was resolved, be reinstated. Specifically, Complainant alleged that the former Deputy Chief "who denied my request to return to my previous position as part of my Alternative Dispute Resolution (ADR) settlement negotiation, was under investigation at that time for allegedly circumventing merit selection procedures, engaging in prohibited personnel practices and ignoring hiring preferences for military veterans."
Complainant further alleged that his due process was violated because the former Deputy Chief "the deciding agency official under investigation should not participate in any conduct during the EEO process that presents the appearance of or demonstrates actual bias against the aggrieved party."
The record showed that Complainant contacted Agency management in an effort for resolution. However, following thirty-five day of receipt of Complainant's claim of breach, the Agency did not issue Complainant a determination on his claim of breach. Therefore, Complainant filed his appeal with the Commission. We note that the Agency has not responded to Complainant's appeal.
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).
In the instant case, the Commission determines that the record in this case contains insufficient evidence for us to determine whether a breach of the instant settlement agreement has occurred. We note that the record contains a copy of the Supervisor of Employment Compliance Team's letter dated May 11, 2012 to the Chief of Compliance Division. Therein, however, the Supervisor merely stated without further elaboration that the Agency is in compliance with the July 20, 2011 settlement agreement. We note that the record contains no affidavits from the Agency management indicating that they purportedly fulfilled the obligations under the terms of the settlement agreement. Given this lack of evidence, we are unable to ascertain whether the Agency complied with the settlement agreement. Accordingly, we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to take the following action:
The Agency shall supplement the record with evidence clearly showing that it has complied with the July 20, 2011 settlement agreement. The supplementation of the record shall include any documentation, such as an affidavit from responsible management officials, indicating whether the Agency complied with the July 20, 2011 settlement agreement. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall issue a new decision concerning whether it breached the July 20, 2011 settlement agreement.
A copy of the Agency's new decision must be sent to the Compliance Officer as referenced herein.
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 (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), at 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
October 10, 2012
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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