0120143233
02-25-2015
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120143233
Agency No. HS-ICE-00034-2014
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated September 10, 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 this complaint, Complainant worked as a Special Agent at the Agency's Immigration and Customs Enforcement facility in McAllen, Texas.
On July 8, 2014, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:
(2b) The Agency agrees to provide the Complainant with training and / or shadowing in the Financial Crimes Investigation unit and / or send him TDY to gain experience in one of the units that covers the Financial Investigations programmatic area for the next 12 months;
(2c) Complainant will be assigned to the Financial Crimes Investigation unit, effective July 9, 2014;
(2d) No later than 5 days from the signing of this Agreement, the Agency will instruct GS [named Group Supervisor] to limit contact with the Complainant to business-related contact only and, upon Complainant's transfer, to route contact with the Complainant through Complainant's current supervisor when practical; and any subsequent contact will not constitute a breach of this Agreement; and
(5) This Agreement constitutes the full and complete agreement between Complainant and the Agency and supersedes all prior oral and written agreements between the parties with respect to matters settled in this Agreement.
On July 15, 2014, the named Group Supervisor emailed Complainant directly without going through Complainant's immediate supervisor. The email was a business related email regarding a customer trying to obtain a U-Visa certification. On that same date, the Group Supervisor walked by Complainant's cubicle and asked, "What's up?"
By letter to the Agency dated July 30, 2014, Complainant alleged that the Agency was in breach of the settlement agreement provision 2d, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that ICE failed to limit the Group Supervisor's contact with Complainant.
In a subsequent email dated September 4, 2014, Complainant alleged another breach allegation regarding the same paragraph 2d. Complainant stated that on August 21, 2014, he was notified that he would be the acting Group Supervisor to cover for another supervisor. Later that day, Complainant learned that the named Group Supervisor was designated to be the acting Program Manager. Complainant states that he was therefore "forced to report to the Acting Program Manager [named Group Supervisor] when [the] settlement agreement stipulates that [the named Group Supervisor] should have no contact with me, unless is it operationally necessary." Complainant states that during the time he served as acting Group Supervisor, Complainant received three emails from the Group Supervisor.
In its September 10, 2014 FAD, the Agency concluded that it did not breach paragraph 2d of the Agreement. The Agency reasoned that the Agreement does not prohibit "all" contact with Complainant by the Group Supervisor and that the Agency fulfilled its obligation under the terms of the Agreement when the Group Supervisor was instructed to limit his contact.
On September 19, 2014, Complainant submitted a third notice of a breach to the Agency and submitted this appeal directly to this Commission on the same date.1 Complainant maintains that the Agency violated paragraphs 2b and 2c. Complainant asserts that the Agency did not provide him with training or shadowing in the Financial Crimes Investigations unit for 12 months and did not assign him to the Financial Crimes Investigation unit. The Agency stated, in response to the appeal, that the September 19, 2014 breach notice remained pending with the Agency at the time that Complainant filed this appeal. In addition, the Agency stated that it complied with the terms of the Agreement because there is only one financial group and Complainant was assigned to that group and that training was provided. The Agreement did not require continuous training.
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 the Agreement was valid and binding.
We also find that Complainant did not show that the Agency breached the Agreement paragraph 2d, which was the subject of the instant appeal. There was no requirement that the Agency must prevent all contact between Complainant and the Group Supervisor. The Agreement stated that any subsequent contact "will not constitute a breach of this Agreement." Moreover, the Agreement expressly stated that, after issuing the instruction to the Group Supervisor to refrain from non-business contact, the Agency met its obligation. In this case, there was no showing that the emails were not business related. The email inquiry regarding the windshield pertained to agency vehicles. Another emails relayed an inquiry regarding a visa question.
For these reasons, we find that the Agency did not breach the Agreement.
CONCLUSION
Accordingly, we AFFIRM the Agency's Breach Decision.
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 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 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
February 25, 2015
__________________
Date
1 The Agency issued its decision on December 5, 2014. That decision is pending review under Martin C. Kehoe v. Department of Homeland Security, EEOC Appeal 0120150973.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120143233
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120143233