0120161390
05-20-2016
Werner K.,1 Complainant, v. Penny Pritzker, Secretary, Department of Commerce, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Werner K.,1
Complainant,
v.
Penny Pritzker,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120161390
Agency No. 67-2013-00095
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated December 15, 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 worked at the Agency's Bureau of Industry & Security facility in Washington, D.C.
On November 10, 2014, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that the Agency agrees to:
(3a) Assign the majority of license applications for nuclear related entities in China, India, Pakistan, and Russia, subject to load balance (which will be determined solely at the Agency's discretion), to Complainant;
(3b) Assign any staff-level policy related regulatory work arising out of licensing applications assigned to Complainant for nuclear related entities (India, China, Russia, Pakistan), subject to load balance (which will be determined solely at the Agency's discretion), to Complainant. Agency agrees to assign Complainant as the Lead Policy Analyst for nuclear propulsion and other similar projects as opportunities occur... Nothing in this Agreement shall prevent the Agency from assigning similar work to other employees;
(3c) Provide Complainant staff-level policy work, such as position paper development on nuclear proliferation issues, when the Agency determines, at its sole discretion, that policy work is needed;
(3d) Inform Complainant of and permit Complainant to attend staff-level internal and external meetings involving exporter/ manufacturers and other agencies' meetings / presentations on current or proposed nuclear dual use export license applications...when the Agency determines, at its sole discretion, that Complainant's attendance at these meetings is needed.
(3e) Permit Complainant's attendance at staff-level nuclear related and division focus technical meetings in order to improve his general understanding of the technical implications for nuclear dual use exports, when the Agency determines, at its sole discretion, that Complainant's attendance at these meeting is appropriate. Nothing in this Agreement shall prevent the Agency from assigning similar work to other employees;
(3g) Subject to budget and staffing, approve training that will update and enhance Complainant's knowledge, skills and ability to work on policy and licensing issues covering proliferation and national security per the Agency mission, as funding permits and load balance (which will be determined solely at the Agency's discretion).
(3h) Conduct a desk audit for Complainant in accordance with the Agency's desk audit procedures, to begin within 1 year; and
(3i) Subject to budget, consider Complainant for international travel opportunities sponsored internally by the Agency and in cooperation with other agencies' outreach, such as the Department of State and the Department of Energy, when the Agency determines, at its sole discretion that such travel is commensurate with Complainant's expertise, and that such travel is in the Agency's best interest. Nothing in this Agreement shall prevent the agency from assigning similar work to other employees.
By letter to the Agency dated November 16, 2015, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, he stated that "after a year in which the agreement should have been implemented, none of the opportunities / points has been met." Complainant alleged that the Agency failed to abide by paragraphs 3a to 3i of the Agreement, noting that he has not received a majority of a significant number of sensitive cases. He stated that he "played a peripheral role at best in policy related regulatory work," that he was given only one policy paper and was involved in only two technical meetings. He also stated that the desk audit was never implemented and he was not granted consideration for travel opportunities, as specified in the Agreement. He seeks to have his original complaint reinstated.
In addition, on appeal, Complainant is alleging new incidents of race discrimination, a hostile work environment and retaliation. Complainant requests that his reinstated complaint and the new complaints be consolidated for investigation and processing.
The record shows that of the 29 applications identified in the Case Facts as EPCI-Nuclear (EN), Complainant was assigned 13 of them. Complainant identified nine India-related license applications that were assigned to others, rather than to him. Management does not dispute that it made the decision to assign these applications elsewhere to other employees. The Agency conceded that two of the nine could have been assigned to Complainant, but "were assigned to other employees on the team due to a management decision regarding load balance." The Agency stated that the export applications to India nuclear facilities have decreased.
With regard to policy issues, the Agency stated that emergent issues are contentious and often require a response with a short turnaround time. The Agency also maintained that "there are not that many meetings with Industry in general, and "the Agency made determinations about attendance at these meetings, subject to load balance."
Agency Decision
The Agency found that "the Agency acted in accord with the terms of the Settlement Agreement and did not violate any of the provisions." The Agency acknowledged Complainant's separate filing of a new complaint, alleging retaliation and a hostile work environment with regard to incidents that occurred subsequent to the execution of the settlement agreement. With regard to the breach claims pertaining to provisions (3a) to (3g) and (3i), the Agency reasoned that "because the Settlement Agreement specifically provided that such assignments, policy work, attendance at meetings, outreach efforts, training, and travel opportunities would take place solely at the Agency's discretion, any failure on the Agency's part did not violate the Settlement Agreement." The Agency noted that Complainant was represented by an attorney at the time of the signing of the Agreement.
The Agency stated that "management has involved Complainant in every nuclear related issue that has been raised by Congressional Staff." The Agency reasoned that Complainant was on the email distribution list for the Civil Nuclear Trade Advisory Committee, but Complainant did not take the initiative to participate.
With regard to paragraph (3h) (desk audit), the Agency blames Complainant for his refusal to cooperate as its reason for not conducting the desk audit. The Agency found that it complied with the Agreement. The Agency decision advised Complainant if he wanted to raise any new claims, he may initiate EEOC counseling.
This appeal followed. On appeal, Complainant asserts that he believes the reasons for the breach was Agency bias and that "the breach is a retaliatory effort for [his] initial complaint and it continues a discriminatory pattern to deny [him] opportunities to advance." He renews his request that his complaint be reinstated for further processing and that all of his allegations be processed together.
The Agency asserts that Complainant is simply dissatisfied with the terms of the Agreement and requests that the Commission affirm its breach determination.
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).
For purposes of this analysis, we will assume that the Agreement was entered in good faith and is valid and binding on both parties. We note, however, that the terms of the Agreement appear one-sided and arguably unenforceable due to a lack Agency consideration, inasmuch as all of the Agency's obligations are left to the Agency's discretion. Nevertheless, we can sufficiently discern the meaning of the Agreement from its stated specifications.
In the instant case, the Agency agreed to assign the majority of license applications for nuclear related entities in China, India, Pakistan, and Russia to Complainant, subject to load balance. He was not assigned the majority of cases. Moreover, the Agency has offered no evidence to show that its reason for not providing the majority of the assignments was due to any determination with regard to the load balance. The record also shows that the he was not given the specified policy work, international travel consideration, included in meetings, or given the desk audit. Even if we disregard the desk audit, we find that the Agency failed to show that it met the remaining terms. We, therefore, conclude that Complainant established his claim that the Agency failed to abide by some of the terms of the Agreement.
Where we find that the Agency has breached the Agreement, as here, we have two options: specific performance or reinstatement of the underlying complaint. Complainant has requested that his underlying complaint be reinstated. There is no indication that Complainant was provided any monetary benefit under the terms of the Agreement. Therefore, there is no impediment to the reinstatement of his complaint, because there is no monetary consideration for him to return before his complaint could be reinstated.
Finally, if Complainant wishes to raise new claims, based on incidents after the execution of the Agreement, Complainant should contact an EEO Counselor to raise the claims.
Accordingly, we find that the Agency breached the Agreement. We order that Complainant's underlying complaint be reinstated.
CONCLUSION
Accordingly, we REVERSE the Agency's Decision and REMAND the matter to the Agency for further processing consistent with the Order below.
ORDER
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. Any pending or new claims should be consolidated for processing with the reinstated complaint, Agency Complaint Number 67-2013-00095. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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
May 20, 2016
__________________
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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