0120121839
07-20-2012
Timothy R. McGregor, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Timothy R. McGregor,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120121839
Agency No. 9R1M12011
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated February 15, 2012, finding that it was in compliance with the terms of a December 16, 2011 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On December 16, 2011, Complainant and the Agency entered into a settlement agreement to resolve a matter which Complainant had pursued in the EEO complaint process. The settlement agreement provided, in pertinent part, that the Division Chief agrees to take the following action:
2.a. Physically reassign [Complainant] from WR-ALC/GROD to 402 AMXG, (as per conversation with 402 AMXG management).
2.b. Reduce the three (3) day suspension beginning 4 October 2011 and ending 6 October 2011 to a one(1) day suspension with back pay for the two (2) days served.
2.c. Change terminology of the three (3) day suspension from "falsification of records" to "misconduct."
By letter to the Agency dated January 25, 2012, Complainant alleged breach. Specifically, Complainant alleged that he has not yet been physically reassigned from WR-ALC/GROD to 402 AMXG. Complainant also alleged that in the new Notice of Decision to Suspend dated January 10, 2012 "contains the words 'in accordance with the settlement agreement signed 14 December 2011, the 3 day suspension is reduced to a 1-day suspension' and the word falsification was to be replaced with misconduct. In the new suspension both falsification and misconduct are mentioned." Finally, Complainant alleged that it was his belief that the Agency would issue a new Notice of Decision to Suspend "for 1 day and not mention the 3 day suspension previously given to me."
In its February 15, 2012 final decision, the Agency found no breach of the December 16, 2011 settlement agreement. The Agency found that the Designated Management Official (DMO) stated that in regard to provision 2.a., Complainant was physically moved to 402 AMXG effective January 29, 2012. The Agency initiated the reassignment action on January 3, 2012, the date on which the WR ALC/GROD resource advisor contacted the appropriate resource advisor in the 402 AMXG.
Regarding provision 2.b., DMO stated that the new Notice of Decision to Suspend dated January 10, 2012, contains the standard language that is applied to any disciplinary action that is being reduced based on a settlement agreement. With respect to provision 2.c., DMO stated that the wording of falsification was corrected to misconduct.
With respect to Complainant's allegation that the Agency should have issued a new Notice of Decision to Suspend for 1 day without making any reference to the original prior 3-day suspension, DMO stated the language in the instant agreement refers to a reduced suspension. DMO further stated that the 3-day suspension must be addressed in the new Notice of Decision to Suspend in order to reduce it to 1-day suspension.
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).
Upon review of the record, the Commission finds that the Agency's determination of no breach of provision 2.a. was proper. The record contains a copy of DMO's memorandum dated February 3, 2012 in response to Complainant's breach allegations. Therein, DMO stated that Complainant was physically moved to 402 AMXG "after the RPA action was effective, 29 Jan 12. WR-ALC/GRO resource advisor contacted the 402 AMXG resource advisor on 3 Jan 12 to initiate the reassignment action process."
We find, however, that the Agency's determination of no breach of provisions 2.b. and 2.c. was improper. Provision 2.b. obligated the Agency to reduce the 3-day suspension beginning October 4, 2011 and ending October 6, 2011 to a 1-day suspension with back pay for the 2 days served. Provision 2.c. obligated the Agency to change the terminology of the 3-day suspension from "falsification of records" to "misconduct." We further find that the expressed wording of provisions 2.b. and 2.c. of the agreement simply states that Complainant's 3-day suspension would be reduced to a 1-day suspension without mentioning the instant agreement, and that the terminology of "falsification of records" would be replaced by the word "misconduct."
The record contains a copy of the new Notice of Decision to Suspend dated January 10, 2002. Therein, the Division Chief informed Complainant that by letter dated October 3, 2011, he was notified of a decision to suspend him from duty without pay for 3 days based on the charge of falsification and "in accordance with the settlement agreement signed 14 December 2011, the 3-day suspension is reduced to a 1-day suspension to be effective 4 October 2011, based on the charge of misconduct." In its final decision, the Agency determined that it was standard language applied to any disciplinary action that is being reduced based on a settlement agreement. We find that the Agency breached provisions 2.b. and 2.c.
Where the Commission finds that a settlement agreement has been breached, the only two remedies available are specific performance of the terms of the agreement or reinstatement of the underlying EEO complaint at the point processing ceased. 29 C.F.R. � 1614.504(c). We find that the appropriate remedy is to order the Agency to implement the terms of provisions 2.b. and 2.c. by rescinding the January 10, 2012 Notice of Decision to Suspend and implementing provisions 2.b. and 2.c.
Upon review of the record, we AFFIRM the Agency's finding of no breach of provision 2.a. We REVERSE the Agency's finding of no breach of provisions 2.b. and 2.c., and remand the matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to take the following action:
Within 30 calendar days, the Agency shall take the following action: implement provisions 2.b. and 2.c. by rescinding the January 10, 2012 Notice of Decision to Suspend and issue a new Notice of Decision to Suspend without mentioning the outcome of the instant agreement, in particular regarding a reference to an original 3-day suspension; and to change the wording from "falsification" to "misconduct" with no reference to "falsification."
The Agency shall provide the Compliance Officer as referenced below with proof of its implementation of provisions 2.b. and 2.c. as identified above.
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
July 20, 2012
__________________
Date
2
0120121839
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121839