0120181208
08-15-2018
Adam F,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Adam F,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120181208
Agency No. 201721700FAA
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) after he received no response from the Agency to his breach claim. Thereafter, the Agency issued its final decision (FAD), dated March 23, 2018, 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. We accept the appeal.
BACKGROUND
At the time of events giving rise to this compliance action, Complainant worked as a Management and Program Analyst, FV-0343-J, at the Agency's FAA, OTO facility in Washington, DC.
On February 28, 2017, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(1a) The Agency agrees to support and approve a mutually agreed upon detail opportunity for the Aggrieved (Complainant) not to exceed six (6) months unless an extension is mutually agreed to by the parties. The detail assignment will provide developmental experience in a Team Lead or Manager's position. The detail will begin prior to the end of fiscal year 2017. A detail assignment will not be approved if the Aggrieved is selected for and accepts a permanent reassignment or position prior to the start of a detail;
(3) The Aggrieved agrees execution of this Resolution Agreement constitutes a withdrawal with prejudice of any and all actions, causes of action, claims, complaints, grievances, appeals, and any other matters, known and unknown, arising out of the [Complainant's] employment with the Agency though the effective date of this Resolution Agreement, including but not limited to 2017-27100-FAA;
(5d) If the Agency has not responded to the Aggrieved or if the Aggrieved is not satisfied with the Agency's attempt to resolve the matter, the Aggrieved may appeal to the EEOC Office of Federal Operations, for a determination as to whether the Agency has complied with the terms of the settlement agreement;
(5e) In the event the Agency does not respond to the Aggrieved's allegation of noncompliance, the Aggrieved may file an appeal; and
(16) The Parties agree this Resolution Agreement sets forth all the terms and conditions of their Agreement and that no other promises, oral or written, have been made or relied upon in executing this Agreement.
The record shows that on January 4, 2017, which was prior to the execution of the Agreement, Complainant's Manager asked Complainant if he wanted to serve as the "Acting Manager of AJI." Complainant accepted his offer. No Form 50 was executed at that time. On September 15, 2017, two Standard Form 50s were added to Complainant's eOPF file. One of the Form 50s states "began a detail for Unclassified Duties, effective March 5, 2017." No Position Description was created. There is no evidence to show that the detail to unclassified duties was mutually agreed upon. The second Form 50 (executed on September 15, 2017) terminated the March detail, effective September 1, 2017.
By letter to the Agency dated October 1, 2017, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency implement its terms. Specifically, Complainant alleged that the Agency failed to detail him to a detail assignment that provided him developmental experience in a Team Lead or Manager. Complainant also alleges that he was not selected for the permanent Incumbent Team Manager position for AJI-3320.
In response to his brief claim, on February 20, 2018, Complainant received a notification from the Acting Chief of the Compliance Branch, apologizing that the Agency had not been able to provide a final decision in a timely manner. She informed Complainant that she (Acting Chief) had not received documentation from the FAA in order to provide a Final Agency Decision. Further, the Acting Chief informed Complainant that, since the Agency has passed the timeframe to issue a decision, Complainant had the right to file an appeal to the Commission. This appeal followed.
Agency Decision
Thereafter, in its March 23, 2018 decision, the Agency concluded that it complied with the Agreement. The Agency reasoned that the FAA placed Complainant on a detail on March 5, 2017, and provided him a Statement of Unclassified Duties as a Team Manager. The Agency acknowledged that there was no specific position title and no occupational series assigned to an Unclassified Detail. The Agency conceded that the SF-50 did not reflect a supervisory position title, as the detail was not to an actual classified position description. The Agency also stated that, on March 8, 2018, after this appeal was filed, a copy of the Statement of Duties was forwarded to be filed in Complainant's eOPF and Complainant would receive an email notification that his eOPF has been updated.
CONTENTIONS ON APPEAL
Complainant asserts that the Agency failed to comply with the Agreement because he was not officially detailed to a developmental position.
The Agency requests that we dismiss Complainant's appeal because the appeal was filed before an appealable final decision was issued and because Complainant failed to serve the Agency with notice of his appeal.
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).
We find the Agreement to be valid and binding on both Parties. We also find that the breach claim is properly before us. By its terms, the Agreement permitted Complainant to file with the Commission if the Agency had not responded to his breach claim.
In this case, the Agreement required the Agency to support and approve a mutually agreed upon detail opportunity for Complainant. (Emphasis added). The record does not show that there was a "mutually agreed upon detail opportunity," implemented in March 2017. The record does not show that Complainant was officially placed in a "Team Lead or Manager's position." The SF 50s show that he was placed in unclassified position with no defined duties. Moreover, the only position offered to him was offered before the Agreement was executed.
By its terms, the Agreement required that the detail assignment provide a developmental experience. It is clear from Complainant's appeal that he did not find the placement in undefined duties to be a "mutually agreed upon detail."
The only way that the Agency could avoid its obligation was that a detail assignment would not be approved if Complainant was selected for, and accepted, a permanent reassignment or position prior to the start of a detail. There is no evidence that Complainant was placed in another permanent position prior to the start of the March detail.
Unlike others who served as acting managers, Complainant's status was not announced to his coworkers. In addition, his records do not reflect that he served in an Acting Manager status. There are no statements or affidavits attesting that Complainant actually received the developmental training referenced in the Agreement.
Therefore, we find that the record supports Complainant's claim that the Agency breached the Agreement, because the record does not show that the March 2017 detail opportunity (that is identified on paper) actually occurred or had been mutually agreed upon.
Where this Commission finds that the 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. See 29 C.F.R. � 1614.504 (c). Complainant did not specify in his notice of breach or in his statement on appeal which remedy was preferred. We therefore give Complainant the option, in accordance with the ORDER below, of either reinstating his underlying EEO complaint, or specifically enforcing the terms of the Agreement. If Complainant chooses to reinstate his complaint, he is required to return any monetary benefits that he has received. In this case, we note that the Agreement did not provide any monetary benefits.
To the extent that Complainant wishes to address any new claims of discrimination and/or retaliation, he should initiate EEO counseling with the Agency as those claims must be addressed in a separate complaint.
CONCLUSION
We find that the Agency breached the Agreement. Accordingly, we REVERSE the Agency's Breach Decision and REMAND the matter in accordance with the ORDER below.
ORDER
Within thirty (30) calendar days of the date of this decision, the Agency is ordered to notify Complainant of his option to either return to the status quo prior to the signing of the settlement agreement or to obtain specific performance of the agreement. The Agency shall also notify Complainant that he has fifteen (15) calendar days from the date of his receipt of the Agency's notice within which to notify the Agency either that he wishes to return to the status quo prior to the signing of the agreement or that he wishes to allow the terms of the agreement to stand. Complainant shall be notified that in order to return to the status quo ante, he must return any monetary benefits received pursuant to the agreement. The Agency shall determine its obligations due to Complainant, or return of consideration or benefits due from Complainant, within thirty (30) calendar days of the date of this decision, and shall include such information in the notice to Complainant.
If Complainant elects specific performance, the Agency shall notify Complainant that the terms of the settlement agreement shall stand and the Agency will abide by all of the terms of the Agreement.
If Complainant elects to reinstate his EEO complaint, the Agency shall resume processing the EEO complaint from the point processing ceased. The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date of this decision. 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 of this decision, 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.
The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.
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.
Finally, we note that Complainant raises a new claim - that he was not selected for the promotion to which he applied. To the extent that he wishes to raise new claims, he should contact an EEO Counselor. Those claims are not encompassed by this breach decision.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)
Under 29 C.F.R. � 1614.405(c) and � 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. � 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative.
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 tends 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 15, 2018
__________________
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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