0120142284
10-16-2014
Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120142284
Agency No. 6Z1M114002
DECISION
On May 6, 2014, the Equal Employment Opportunity Commission (EEOC or Commission) received Complainant's timely appeal from a final Agency determination (FAD) dated April 24, 2014, 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 his claim of breach, Complainant worked as an Accounting Technician at the Agency's 412 CPTS/FM, Edwards Air Force Base in California. He provides payroll support for thousands of customers.
Believing that he was discriminated against, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On May 26, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
3. ...the Agency agrees:
a. ...[Complainant's changed] position will be a full time Alternate Workplace Arrangement (AWA) in support of the Complainant's request for a reasonable accommodation due to his medical condition (see attached AWA document). This reasonable accommodation also includes an Alternate Work Schedule (AWS) of a 4/10 hour compressed schedule (Monday-Thursday 6:30 AM-5:00 PM.... Regular Day Off (RDO) will be Friday....
b.
c. The Complainant agrees to inform management if his medical condition changes. Likewise, management may request additional documentation as circumstances warrant. In addition, Complainant acknowledges that his schedule includes a Friday RDO based on his assertion of his need for frequent medical appointments. However, the parties also acknowledge that since 95 CPTS is a customer service organization, the RDO may need to be adjusted in the future to ensure adequate coverage during business hours. Likewise, in the event a change to the RDO becomes necessary, the Agency may request documentation concerning medical appointments.
d. A preliminary review of the AWA/AWS will be conducted after 30 days from the date of... reassignment. The review will be an interactive process between the Complainant and Management. This review will serve to identify any needed adjustments to work processes and procedures, equipment or resources. Terms of the AWA/AWS will be reviewed thereafter, on the anniversary date of signed Agreement. The annual review shall include an assessment of the AWA/AWS and any adjustments to be made. Complainant agrees to provide medical documentation from his treating physician supporting the need for continued 100 percent AWA during the annual reviews.
e. Management shall reserve the right to cancel or revise the AWA and/or AWS if position requirements, conduct or performance concerns can no longer sustain the AWA as written....
Section 3.a. of the settlement agreement referred to the Telework Request/Agreement Alternate Workplace Arrangement (AWA) which was later signed by the parties on June 15, 2011. It provided, in relevant part, that:
6. Work Schedule and Tour of Duty: The organization and employee agree the employee's official tour of duty will be: 10 hour compressed schedule (Monday-Thursday 6:30 AM-5:00 PM.... Regular Day Off (RDO) will be Friday.
8. Leave: Employee agrees to follow established organization/office procedures for requesting and obtaining approval of leave.
9.
10. Equipment/Supplies: Employee agrees to protect any government-owned equipment and to use the equipment only for official purposes. The organization agrees to install, service and maintain any Government-owned equipment issued to the telework employee. The employee agrees to install, service and maintain any personal equipment used....
11.
12.
13.
14. Worksite Inspection: The employee agrees to permit the Government to inspect the telework site during the employee's normal working hours with no less than 24 hours advanced notification to ensure proper maintenance of Government-owned property and conformance with safety standards.
By email to the Agency on February 4, 2014, which he later clarified, Complainant alleged that the Agency breached the settlement agreement. Specifically, he alleged that the Agency did not comply with providing him an Alternate Workplace Arrangement meeting the standard of the AWA document and otherwise breached the settlement agreement. Specifically, he contended that the Agency: (a) did not properly service his government owned equipment, which resulted in connectivity problems, (b) did not provide him with a printer/scanner/fax (for which he had an occasional need - examples signing a furlough letter and new telework agreement), (c) did not timely turn on and off the call forwarding feature on his work phone at the government office, resulting in him missing calls while on duty and getting calls while off duty, (d) changed leave call-in procedures by requiring him to notify his first or second line supervisor, (e) his second line supervisor came to his residence without providing him 24 hours notice, (f) in December 2013, his second line supervisor attempted to cancel his Compressed Work Schedule, and (g) in January 2014, his second line supervisor requested medical documentation to validate his on-going requirement for 100% telework.
In its April 24, 2014 FAD, the Agency concluded that it complied with the settlement agreement. It relied on a statement and documentation provided by Complainant's second line supervisor.
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 that the Agency complied with the settlement agreement. It promised to provide Complainant a full time Alternate Workplace Arrangement, and a compressed work schedule with Fridays off, and did so. While the parties referred to the AWA document in the settlement agreement, they did not indicate they were incorporating the terms thereof - that any departure from alternate workplace arrangements, even if Complainant continued to work at home full-time, would constitute a breach of the settlement agreement. Also, while Complainant contends that the Agency threatened to stop his compressed schedule in December 2013, the record strongly suggests this was not implemented.
Even if all the provisions of the AWA document were incorporated into the settlement agreement, we find that the Agency was in compliance thereof. While Complainant was dissatisfied with the quality of service he received in terms of connectivity and telephone forwarding, the Agency provided him service. He has not shown that the service was such that in effect he did not receive service. We can discern no requirement for the provision of a particular piece of government-owned equipment, such as a printer/scanner/fax machine in the AWA document. Nor does Complainant contend that it was identified by the parties as something needed in one of the annual or initial reviews anticipated in settlement term 3.d. Complainant was required to follow office procedures in making a leave request - contacting his first (direct) or second line supervisor. While there was a change in his direct supervisor in May 2013, the leave requesting procedure did not change. The second line supervisor's request for medical documentation to validate his on-going requirement for 100% telework was permitted by term 3.c. of the settlement agreement. Complainant does not contend such a request was recently made prior. While it is true that the second line supervisor visited Complainant outside his home without 24 hours notice on January 29, 2014, contemporaneous emails by her, an Agency attorney, and an Agency Employee/Labor Management Relations Specialist show the visit was not to inspect Complainant's telework site. Agency brief, documents at pages 49 - 51. Accordingly, the visit did not come within the ambit of the AWA document. The Agency complied with the settlement agreement.
On appeal, Complainant contends that the above Agency actions, as well as others, were discriminatory, including failure to reasonably accommodate his disability. We note that Complainant filed a formal complaint on May 1, 2014, alleging discrimination, including failure to reasonably accommodate, which included the above matters. With the exception of the printer/scanner/fax matter, which the Agency did not define, it dismissed the above matters by letter dated May 21, 2014, on the grounds that they were addressed in the April 24, 2014, FAD finding no breach. The rulings in the May 21, 2014, letter are not yet appealable because the Agency partially also accepted the May 1, 2014, complaint in the letter. However, if Complainant wishes to contest any dismissals in the May 21, 2014, letter on the grounds, for example, that he was alleging discrimination, including failure to reasonably accommodate, and not just breach, he should promptly and explicitly do so with an EEOC Administrative Judge (AJ), in accordance with the AJ's instructions, if he requests a hearing. If Complainant does not request a hearing he can contest the dismissals by explicitly doing so on appeal with this office after the Agency issues a final decision on the May 1, 2014, complaint.
We have not made any determinations in this decision on whether or not discrimination occurred.
The April 24, 2014, FAD is AFFIRMED.
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), 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
October 16, 2014
__________________
Date
2
0120142284
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120142284