0120171259
08-10-2017
Victor S,1 Complainant, v. Dr. Benjamin S. Carson, Sr., M.D., Secretary, Department of Housing and Urban Development, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Victor S,1
Complainant,
v.
Dr. Benjamin S. Carson, Sr., M.D.,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120171259
Agency No. HUD001262013
DECISION
Complainant filed a timely appeal with this Commission from final decisions (FAD) by the Agency dated March 31, 2015 and January 25, 2017, 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 complaint, Complainant worked as a Financial Systems Analyst at an Agency facility in Washington, DC. Believing that the Agency subjected him to unlawful discrimination and harassment, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. Complainant filed an EEO complaint that progressed to the hearing stage of the administrative process. On August 15, 2014, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(4)2: The Department agrees that within 45 days of the execution of this Settlement Agreement (unless otherwise stated below) that it will:
a. Delete language in the March 10, 2014 Notice of Placement on Administrative Leave that refers to threatening and/or disturbing behavior3;
b. Complete the narrative sections of Standard Forms 3112B and 311D with mutually-agreed upon language and to provide a copy of the completed forms to the Complainant within 30 days of submitting the forms to OPM4;
c. Provide the Complainant only neutral employment references consistent with 5 C.F.R. Part 293.311;
d. Leave Complainant on administrative leave for total of 45 days following the execution of this Agreement or the acceptance of his disability claim by the Office of Personnel Management (OPM), whichever comes first;
e. Pay Complainant a lump sum of $5,000.00.
By letter to the Agency dated February 25, 2015, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency submitted a continuation sheet to Form 3112B containing mutually agreeable language, but then completed Form 3112B with language that directly contradicted the mutually agreeable language in the continuation sheet. Complainant stated that the continuation sheet states, "Complainant is no longer able to perform his core duties" due to disability but Section B, paragraph 3 of Form 3112B contains the response "No" to the question "Is Performance less than fully successful in any critical element of the position?" Complainant stated that the Agency's contradictory response on Form 3112B could deprive him of the primary benefit of the agreement because OPM will not approve disability retirement where an applicant can still perform his duties at a fully successful level.
The record contains a Supervisor's Statement in Connection with Disability Retirement questioning "Is performance less than fully successful in any critical element of position," to which Complainant's supervisor (S1) responded "No." The record also contains a September 15, 2014 memorandum from S1 to OPM stating the following: "Due to [Complainant's] disability he is no longer able to perform his core duties. Management fully supports [Complainant's] request to retire under the Disability Retirement."
In a final decision dated March 31, 2015, the Agency concluded that it complied with the August 15, 2014 agreement. Specifically, the Agency stated that it provided and, on March 4, 2015, Complainant approved a revised Form 3112B with mutually-agreed upon language. The record contains a memorandum, dated November 2, 2015, titled Medical Request Update and Badge Deactivation.5 The November 2 memorandum requested current, medical documentation specific to Complainant's medical condition that impacts his job, stated Complainant's badge was deactivated and his facility access withdrawn due to a threatening email he sent to a supervisor, and placed Complainant on administrative leave effective October 4, 2015 pending a medical clearance decision. The memorandum stated "You were placed on administrative leave for your unacceptable conduct and remain in this status until proper medical documentation is received and reviewed." The memorandum refers to Complainant's conduct of March 7, 2014.
In a letter dated April 5, 2016, Complainant alleged that the Agency breached the settlement agreement further by using an unsubstantiated claim of threatening behavior to justify a request for additional medical information, to deactivate Complainant's agency personal identity verification badge, to place Complainant on an additional administrative leave period, and to remove Complainant from employment6. Complainant stated that the Agency's actions violated paragraphs (4)(a) and (4)(d) of the settlement agreement.
On January 4, 2017, Complainant alleged breach stating the Agency failed to expunge any reference to the alleged March 2014 threatening behavior. In a letter dated January 25, 2017, the Agency concluded that it remained in compliance with the August 15, 2014 agreement. The instant appeal from Complainant 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).
In the instant case, we find the Agency is not in breach of paragraph (4)(b), but is in breach of paragraphs (4)(a) and (4)(d). As to paragraph (4)(b), the record contains a September 15, 2014 memorandum from S1 to OPM. S1 stated that Complainant is no longer able to perform his core duties due to his disability, and that the Agency fully supports Complainant's request for disability retirement. Said language conveys mutually-acceptable information to OPM for Complainant's disability retirement application. Regarding paragraphs (4)(a) and (4)(d), on November 2, 2015 (about sixteen months after the settlement agreement), citing Complainant's March 2014 threatening conduct, the Agency requested medical documentation, continued to deactivate Complainant's badge and withhold Agency building access, continued to keep Complainant on administrative leave, and terminated Complainant's employment. The Agency specifically refers to Complainant's threatening email in the November 2 memorandum. To reference said misconduct in subsequent correspondence, such information would have to remain in the original March 2014 documentation. Also in its November 2 memorandum, the Agency extended Complainant's administrative leave beyond the 45 day total provided in paragraph (4)(d). Based on the above, the Agency failed to comply with the specific obligations imposed by (4)(a) and (4)(d).
CONCLUSION
We REVERSE the Agency's final decisions finding no breach of the settlement agreement and we REMAND this matter to the Agency to specifically implement provisions (4)(a) and (4)(d) in accordance with the Order below.
ORDER
The agency is hereby ORDERED in accordance with 29 C.F.R. � 1614.504(c), to specifically implement the August 15, 2014 settlement agreement, in particular paragraphs (4)(a) and (4)(d). The Agency must ensure references to threatening and/or disruptive behavior are removed from the March 10, 2014 Notice of Placement on Administrative Leave and remove Complainant's placement on administrative leave beyond a total of 45 days following the execution of the settlement agreement or acceptance of Complainant's disability claim, whichever occurs first.
The Agency is directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision."
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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. 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
August 10, 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.
2 The provision is re-named herein for ease of reference.
3 The Agency provided a revised March 10 memorandum replacing "threatening behavior to your supervisor" with the language "your written and oral communications with your supervisor."
4 The Agency stated that it allowed for an abeyance of discipline for Complainant's March 2014 misconduct in exchange for him applying for disability retirement.
5 The record contains a letter, dated September 28, 2015, where OPM denies Complainant's application for disability retirement for failure to provide supporting medical documentation. The Agency returned Complainant to administrative leave after OPM's denial.
6 The record contains a December 19, 2016 Removal for "Unacceptable Conduct" effective December 30, 2016.
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