Complainant,v.Ray H. LaHood, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity Commission

Jun 21, 2013

0120121747 (E.E.O.C. Jun. 21, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.

Appeal No. 0120121747

Agency No. 2011-23951-FHWA-02

DECISION

Complainant filed an appeal with this Commission from a final decision by the Agency dated
March 1, 2012, finding that it was in compliance with the terms of the settlement agreement
into which the parties entered. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

BACKGROUND

Complainant and the Agency entered into a settlement agreement dated August 16, 2011,
which provided, in pertinent part, that:

2. The Agency shall:

a. Within 30 days following the effective date of this Agreement, Complainant will
meet with [Person A] of the Agency's Human Resources staff to discuss
Complainant's career progression as an Agency employee. Complainant and
[Person A] will meet and confer for no more than four sessions, to be
coordinated with [Person A] and Complainant's manager at least 5 business days
in advance, within the 90 days following the effective date of this agreement, to
formulate and implement a plan for Complainant to enhance his promotional
opportunities.

b. During these meetings, Complainant and [Person A] [will] discuss and reach
agreement on the following matters:
1. Complainant's areas of interest and/or other positions within FHWA
[Federal Highway Administration] for which he may seek promotion;
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2. [Person A] will review Complainant's current professional resume and
provide Complainant with suggestions on how to improve his resume.
3. [Person A] will review Complainant's current Individual Development Plan
(IDP) and assist Complainant and his supervisor to revise the IDP.
4. [Person A] either in connection with the IDP review or separately, will
direct Complainant to the proper Agency official, who can advise
Complainant as to specific training courses that will enhance his promotional
opportunities.
5. The Agency will make good faith efforts to address and reach a written
understanding with Complainant regarding Nos. 1 - 4 above within ninety
(90) days of the effective date of this Agreement.

c. The Agency will place Complainant in the Agency's Mentor-Mentee program on
the first available date after the signing of the agreement.

d. Nothing in this Agreement shall prevent Complainant requesting reassignment to
another FHWA organization GS-11 position at any time.

By letter to the Agency dated December 7, 2011, Complainant alleged that the Agency was in
breach of the settlement agreement, and requested that the Agency specifically implement its
terms. Specifically, Complainant claimed that he had not received a written understanding
from the Agency as required under Section 2.b.5. of the final settlement agreement regarding
the enhancement of his promotional opportunities.

In its March 1, 2012 decision, the Agency concluded that it did not breach the terms of the
August 16, 2011 settlement agreement. With regard to provision 2.a., Complainant was to
meet with Person A for a discussion within 30 days following the effective date of the
settlement agreement. The Agency stated that although a meeting did not take place within 30
days following the effective date of the settlement agreement, the meeting requirement was
nevertheless subsequently satisfied when Complainant met with Person A on October 11,
November 2, and November 16, 2011. The Agency claimed that since the meetings
requirement between Complainant and Person A was subsequently met, the delay does not
constitute a breach. The Agency noted that these three meetings between Complainant and
Person A also satisfy the other requirement that Complainant and Person A meet and confer
for no more than four sessions within the 90 days following the effective date of the
agreement.

With regard to provision 2.b.1., the Agency stated Complainant and Person A were to discuss
Complainant's areas of interest and/or other positions within FHWA for which Complainant
may seek promotion. The Agency stated that Person A reviewed two vacancies for which
Complainant applied. In support of its contention, the Agency provided an electronic mail
message dated October 14, 2011, from Person A to Complainant discussing information on the
two Budget Analyst vacancies to which Complainant applied.

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With regard to provision 2.b.2., the Agency noted Person A was to review Complainant's
current professional resume and provide Complainant with suggestions on how to improve his
resume. Management contended that Person A did review and provide suggestions to
Complainant regarding his resume. The Agency supplied an electronic mail message from the
FHWA Legal Representative dated February 8, 2012, stating that Person A met with
Complainant and reviewed and gave suggestions regarding his resume.

With regard to provision 2.b.3, the Agency noted that Person A was to review Complainant's
current IDP and assist Complainant and his supervisor to revise the IDP. Management
contended that Person A did review Complainant's IDP as agreed. The Agency supplied
electronic mail messages from November 2011, which it stated showed compliance with this
provision.

With regard to provision 2.b.4., the Agency noted that Person A was to direct Complainant to
the proper Agency official, who could advise Complainant as to specific training courses that
would enhance his promotional opportunities. Management stated that Person A addressed this
issue with Complainant and recommended several training courses for him. The Agency
supplied an electronic mail message from October 14, 2011, giving Complainant the link for
the Informal Career Advisory program that she mentioned to him during their meeting of
October 13, 2011. In addition, in this electronic mail message, Person A advised Complainant
he may also be interested in contacting the Discipline Champions for the fields in which he had
expressed an interest in pursuing. Person A provided Complainant the website where he could
find information on the Discipline Support System and contacts for the Champions program.
Finally, the Agency provided a November 2, 2011 electronic mail message from Person A
informing him of an upcoming Discipline Support System Webinar in which he might be
interested.

With regard to provision 2.b.5., the Agency stated that it was required to make good faith
efforts to address and reach a written understanding with Complainant regarding Nos. 1-4
above within 90 days of the effective date of this Agreement. The Agency noted Complainant
claimed that he has not received a final written understanding regarding implementation of the
items set forth in Section 2.b., items 1-4, as required by the agreement. However, the Agency
argued that there was no agreement by the parties that a written understanding was required
regarding the enhancement of Complainant's promotional opportunities, and that each of the
tasks in 1-4 was completed and a good faith was made to address and reach a written
understanding with Complainant.

With regard to provision 2.c. of the settlement agreement, the Agency stated it was to place
Complainant in the Agency's Mentor-Mentee program on the first available date after the
signing of the agreement. The Agency stated that both Complainant's attorney and
Complainant were aware at the signing of the settlement agreement that this program was not
currently in place. The Agency noted the contract for this FHWA program expired but is
expected to be renewed. The Agency stated that once the program is in place, Complainant
will be placed in the program. The Agency contended the date the program is in place will be
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the first available date to enter the Complainant into the Mentor-Mentee program after the
signing of the agreement. The Agency stated it is making a continued good faith effort to
comply with this requirement.

The Agency noted that under section 2.d. of the settlement agreement, nothing in the
agreement was to prevent Complainant from requesting reassignment to another FHWA
organization GS-11 position at any time. The Agency noted that Complainant has not alleged
that the Agency prevented Complainant from making such a request. The Agency stated it has
complied with this requirement.

On appeal, Complainant claims that while he did meet with Person A as contemplated in the
settlement agreement, the Agency failed to carry through on its promise to reach a written
agreement with Complainant “to implement a plan . . . to enhance his promotional
opportunities.” Complainant states he understood and agreed that in lieu of pursuing his EEO
complaint, he would accept terms in the settlement agreement that would address his concerns
regarding his lack of promotional advancement.

In response to Complainant’s appeal, the Agency claims that section 2.b.5. of the agreement
contemplates that the Agency will make a good faith effort to reach a written understanding
regarding section 2.b.l. through 2.b.4. of the settlement. The Agency notes this includes:
2.b.l. - other areas of interest or other positions Complainant might be interested in; 2.b.2. -
improving Complainant's resume; 2.b.3. - developing an IDP; and 2.b.4 - advising on training
courses. The Agency argues that at no point does the agreement state that there will be a
written agreement to implement a plan to enhance his promotional opportunities.

The Agency states Complainant seems to claim that there was an unexpressed negotiation
regarding his promotional advancement which it points out was not stated in the agreement.
The Agency notes it attempted to work with Complainant to help him with areas in which he
was struggling, such as his resume writing, training classes, and development in the hopes that
these would help Complainant with his issues regarding non-selection of over 15 positions for
which he applied.

The Agency notes there is no portion of section 2.a. that states there will be any written
understanding regarding section 2.a. The Agency notes the statement “formulate and
implement a plan for Complainant to enhance his promotional opportunities” is in section 2.a.
of the agreement. The Agency notes that the statement does not state that there will be a
written understanding regarding Complainant’s promotional advancement. The Agency claims
that the agreement was to help Complainant enhance his promotional opportunities, not for the
Agency to promote or advance him.

The Agency also addresses provision 2.c., requiring the Agency to place Complainant in the
Agency’s Mentor-Mentee program on the first available date after the signing of the
agreement. The Agency explains that due to budget restraints, the Mentor-Mentee program
has been placed on hold. The Agency states that once the program is in place, Complainant
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will be placed in the program at the first available date. The Agency claims that since this date
has not passed, the Agency is making a continued effort to comply with this requirement. The
Agency reiterates that this was known by Complainant before the signing of the Agreement.

ANALYSIS AND FINDINGS

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 present case, we find Complainant has failed to show that the Agency breached the
terms of the August 16, 2011 settlement agreement. With regard to provision 2.a.,
Complainant was to meet with Person A within 30 days following the effective date of the
settlement agreement to discuss Complainant’s career progression. This provision also stated
that Complainant and Person A will meet for no more than four sessions within the 90 days
following the effective date of this agreement, to formulate and implement a plan for
Complainant to enhance his promotional opportunities. The record reveals that Complainant
and A Person met on October 11, November 2, and November 16, 2011. We find that the
Agency has shown it substantially complied with provision 2.a.

We find that provision 2.b. was an extension of provision 2.a. in that it specified that during
the meetings mentioned in provision 2.a., Complainant and Person A were to discuss and reach
agreement on the matters set forth in provisions 2.b.1 – 2.b.5. The Agency has shown that
Complainant and Person A have discussed other areas of interest or other positions
Complainant might be interested in (b.1.); improving Complainant's resume (b.2.);
Complainant’s IDP (b.3.); and advising Complainant on training courses (b.4.). The Agency
has shown that it complied with provisions 2.b.1 – 2.b.4.

We note that provision 2.b.5 stated that the Agency will make good faith efforts to address and
reach a written understanding with Complainant regarding Nos. 1 - 4 above within 90 days of
the effective date of this Agreement. The Agency argues that it made good faith efforts to
reach a written agreement. As noted above, we find that the Agency has shown compliance
with provisions 2.b.1 – 2.b.4. We note Complainant does not claim bad faith by the Agency,
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and we find no evidence of bad faith regarding provision 2.b.5. Additionally, we note the
agreement did not provide that Complainant would receive an actual promotion. Upon review,
we find the Agency has substantially complied with provision 2.b.5. We note on appeal,
Complainant does not challenge provisions 2.c. or 2.d. and thus, we decline to address
whether those provisions have been complied with in this decision.

CONCLUSION

Accordingly, the Agency’s final decision 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), 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
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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

June 21, 2013
Date