0120131552
08-09-2013
Ariel C. Lopez, Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury, Agency.
Ariel C. Lopez,
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120131552
Agency No. IRS120526
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated March 5, 2012, 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 Program Analyst at the Agency's facility in Washington, DC.
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On July 26, 2012, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1B) Supervisory Attorney-Advisor, Office of Professional Responsibility beginning October 15, 2012 when the Aggrieved has returned to his permanent position as Program Analyst, Office of Professional Responsibility, Legal Analysis Branch, will meet with the Aggrieved Party for one hour each week for the next six months to analyze the Aggrieved Party's case work and give the Aggrieved party feedback on his casework.
(1C) Supervisory Attorney-Advisor, Office of Professional Responsibility, Legal Analysis Branch will, no later than December 1, 2012 make an assessment of the courses the Aggrieved Party will take [sic] for a program analyst curriculum on Enterprise Management Learning Systems (ELMS). No later than December 1, 2012, Supervisory Attorney-Advisor, Office of Professional Responsibility, Legal Analysis Branch will provide the Aggrieved Party with of list [sic] of those courses.
By letter to the Agency dated December 18, 2012, 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 failed to comply with provision (1B) in that the meetings which provided Complainant with feedback on his casework were insufficient and did not provide adequate analysis of his casework. Complainant further alleged that the Agency failed to comply with provision (1C) of the settlement in that, there has been no assessment made of the courses Complainant will take for the Enterprise Management Learning Systems (ELMS).
In its March 5, 2012 FAD, the Agency concluded that the Agency had complied with the specific terms of the settlement agreement. Concerning provision (1B), the Agency indicates in its final decision that Complainant's supervisor, after consulting with Agency officials, arranged for a Senior Counsel/Reviewer attorney well versed in the technical aspects of the Agency's work to meet with Complainant weekly regarding his work. In an email, Complainant's supervisor advised Complainant that the senior attorney would be working with Complainant regarding his work product. The email also advised Complainant that as part of the supervisor's "increased training commitment", he proposed that their weekly meetings begin on November 9 and continue every Friday thereafter. The record does not indicate nor does Complainant contend that Complainant offered any objection to meeting with the senior attorney or with his supervisor beginning on November 9. The record further indicates that Complainant's supervisor was unable to meet with Complainant on November 2, 9 and 16 because he had to take leave for personal reasons and had to attend an emergency meeting with his office Director. However, the record contains documentation recording the attendance of Complainant and his supervisor at weekly meetings in December, January and February. The record also indicates that on February 15, 2012, Complainant requested that the weekly meetings be discontinued. To the extent that Complainant alleged that the Agency's weekly meetings did not provide him with the feedback he desired regarding his casework, we note that he had the opportunity to negotiate for and include in the agreement, the type of feedback he desired.
Concerning provision (1C), the Agency indicates that a detailed and complete curricula of courses on the ELMS, customized to each job series, including Complainant's' was created and in October 2012. The Agency indicates further that the detailed list sent to Complainant December 4, 2012, in accordance with the settlement agreement. According to the Agency, Complainant's supervisor also prepared a separate spreadsheet outlining the specific management and program analyst training curriculum for legal analysis branch, and attached the spreadsheet to the list of ELMS courses Complainant received.
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 that Complainant has failed to demonstrate that the Agency failed to comply with the specific provisions of the settlement between the parties. In reaching this conclusion, we note that the Agency provided copies of the email chain between Complainant and his supervisor regarding the weekly meetings begging in November 2012 as well as a copy of Complainant's email requesting an end to the meetings in February. On appeal, Complainant alleges that the meetings with the senior attorney were not helpful; there is no indication in the record, however, that Complainant ever advised his supervisor or any other Agency official that he needed additional assistance and more feedback regarding his work product. Moreover, the record indicates that Complainant continued to meet with his supervisor concerning his work in full performance of the terms of the settlement agreement. We also find that the Agency provided Complainant with a list of ELMS courses in compliance with the July 26, 2012 settlement agreement. On appeal Complainant challenges the Agency's compliance with provision 1C because Complainant received the list on December 4 and not on December 1, 2012 as provided in the agreement. We have held that failure to satisfy a time frame specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, especially when all required actions were subsequently completed. See Lazarte v. Department of Interior, EEOC Appeal No. 01954274 (April 25, 1996).
CONCLUSION
In that regard, we find that the Agency's determination that it complied with the settlement agreement was proper. The Agency's decision is hereby affirmed for the reasons set forth herein.
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 (S0610)
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. 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
August 9, 2013
__________________
Date
2
0120131552
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
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6
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