Gerard M.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Agricultural Marketing Service), Agency.

Equal Employment Opportunity Commission

Sep 30, 2019

2019005187 (E.E.O.C. Sep. 30, 2019)

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

Gerard M.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Agricultural Marketing Service),
Agency.

Appeal No. 2019005187

Agency No. AMS201500559

DECISION

Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or
“Commission”) from a June 5, 2019 final agency decision (“FAD”) that found the Agency 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

During the relevant time frame, Complainant worked as a Budget Analyst, GS-13, within the
Agency’s Fruit and Vegetable Program Specialty Crops Inspection Division, located in
Washington, D.C.

On July 18, 2017, Complainant and the Agency entered into a negotiated, binding settlement
agreement (“Agreement”) to resolve a Notice of Proposed Removal and, all claims filed by
Complainant, including discrimination allegations raised with an EEO Counselor.2 The
Agreement provided, in relevant part:

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.

2 EEOC Hearing No. 5702016004801X (Jul. 25, 2017) (Agency No. AMS201500559); EEOC
Appeal Nos. 0120150743 (Apr. 20, 2017) (EEOC Hearing No. 570291300743X, Agency No.
AMS201201007), and 0120151918 (Apr. 20, 2017) (Agency No. AMS201400647).
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A.1. The Agency shall place [Complainant] on a full-time Work at Home (WAH)
schedule until April 15, 2019. . . The parties will complete a Work at Home
Agreement, which shall be incorporated as an attachment to this Agreement.
[Complainant]'s retirement or resignation will then be made effective immediately
on April 15, 2019. [Complainant] will be subject to any training, reporting for
meetings, or other administrative/program needs (i.e. the Agency may ask him to
report to various duty sites).
. . .

A.3. [Complainant] shall submit a complete retirement application, signed and dated,
to [the Agency’s specified Human Resources contact or her replacement]… the
application, with original signatures, and its attachments must be received by that
office by 3:00 p.m. Eastern time on March 31, 20l9, to voluntarily retire or
voluntarily resign from the Agency on April 15, 2019. In this regard,
[Complainant’s] retirement is submitted voluntarily and without coercion…. In
the event he has neither retired nor secured other employment which will be
effective on or before April 15, 2019, then the Agency will process his resignation
[as “voluntary” for “personal reasons”].
. . .

A.6. The Agency agrees to remove within 60 calendar days of the effective date of this
agreement the following documents and no others from [Complainant’s] eOPF:

a. The Standard Forms 50/52 for the 3-Calendar day Suspension, effective
April 21, 2015, and,

b. The Standard Form 50/52 for the 14-Calendar day Suspension, effective
October 12, 2015.

The term "Remove" in this Agreement does not imply changing any other record
or any kind, past or future, that resides in any other location or form (e.g. activity
reports, emails…) ….Except as expressly provided for in this Agreement,
[Complainant] waives all rights to seek or have any other records adjusted or any
other remedies for any matters arising from or related to [Complainant’s]
employment with the Agency…

. . .

A.9. The Agency shall change Complainant’s "Unacceptable" 2016 Performance
Evaluation … to "Fully Successful" within sixty (60) calendar days from the
effective date of this Agreement. Each element will be rated as "Meets Fully
Successful" with the overall summary rating of "Fully Successful.” Except as
expressly provided for in this Agreement, [Complainant] waives all rights to seek
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or have any other records adjusted or any other remedies for any matters arising
from or related to [Complainant’s] employment with the Agency.

On August 14, 2017, in accordance with Provision A.1, Complainant and the Agency entered
into a WAH agreement by completing the Agency’s standardized “Telework Agreement” Form
AD-3018.

Complainant acknowledges that the Agency complied with A.1. to the extent that his schedule
was WAH full time, but argues that the Agency acted in bad faith, and breached A.1. and the
WAH agreement by preventing him from working as a full-time Budget Analyst. By
Complainant’s account, the Agency “failed to allow him to attend meetings, removed his duties,
and disallowed his participation in meetings to enhance his skills.” As a result, Complainant
states that he “was stripped of the ability to perform at a level within his job description.” Most
notably, he alleged his job duties were continually reassigned to younger, less experienced
employees without notice, and he was denied opportunities typically provided to individuals in
his position, such as training and the ability to apply for a detail. Complainant also alleged that
the Agency “has not corrected the file as agreed,” indicating an alleged breach of A.3. and/or
A.6.

On April 15, 2019, Complainant notified the Agency that it was in breach of the July 18, 2017
Agreement. The Agency timely issued a determination that it fully complied with the provisions
of the Agreement. The instant appeal followed.

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 (Dec. 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 (Aug. 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. United States Postal Serv., EEOC Request No.
05910787 (Dec. 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); Complainant v. United States Postal Serv., EEOC
Appeal No. 0120140143 (Feb. 20, 2014).
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Term A.1.

Term A.1., and by extension, the WAH Agreement, establish the Agency’s obligations with
respect to Complainant’s work schedule, location, and status as a full-time employee. Term A.1.
and the Agreement as a whole are silent with respect to Complainant’s title, specific work duties,
and non-mandatory training and meeting attendance. The WAH Agreement, Form AD-3018,
included a space for Complainant’s agency (AMS), office (SCP), and organization (SCI), but it
did not include any details regarding Complainant’s job title or duties.

Complainant argues that under the Agreement he was “supposed to work his same duties as a full
time employee with all benefits, training and access to files and documents as a part of his job
duties.” Yet, this is not included in the plain language of either the Agreement or the WAH
document. Complainant’s request for a desk audit to establish the extent to which the Agency
has removed his duties is based on his erroneous interpretation that his job duties are addressed
in the Agreement. The Agreement and the resulting WAH document are silent on the Agency’s
obligation to notify or include Complainant in non-mandatory meetings and training events, and
ensure he receives software and hardware updates at the same frequency as his colleagues.
Moreover, nothing in the language of either document obligates the Agency to conduct a desk audit
at Complainant’s request. Therefore, failure to provide him with one is not a breach of the
Agreement. See Carter v. Dep’t of the Army, EEOC Appeal No. 01985009 (Jul. 2, 1999) citing
Jenkins-Nye v. Gen. Serv. Admin., EEOC Appeal No. 019851903 (Mar. 4, 1987).

The record reflects that the Agency and Complainant completed a WAH agreement (Form AD-
3018), which identified Complainant as a full-time (40 hours per week) employee and
established that his official duty station was his residence. Complainant does not dispute that he
has worked from home full time until April 15, 2019. Thus, the Agency fully complied with its
obligations under A.1 and the WAH Agreement. If Complainant wanted to ensure that his job
duties were not changed, he should have reduced it to writing.

Terms A.6. and A.9

The Agency’s obligation under Term A.6. is limited to the removal of two Suspensions,
identified in the Agreement, from Complainant’s eOPF, and its obligation under Term A.9.
concerns his 2016 Performance Evaluation only. Both provisions include the specification that,
“[e]xcept as expressly provided for in this Agreement, [Complainant] waives all rights to seek or
have any other records adjusted or any other remedies for any matters arising from or related to
[Complainant’s] employment with the Agency.” The Agency provided sufficient documentation
that it met its obligations under A.6. and A.9., which Complainant does not challenge on appeal.

Complainant’s allegations regarding his records do not concern the specifically defined
documents in Terms A.6 and A.9., as his allegation concerns his 2017 and 2018 reviews.
Likewise, Complainant states on appeal that management “failed to keep his personnel file
updated as other full-time employees…even after he complained and alerted them of the lack of
information in his personnel file.” Based on his comparison to other employees, Complainant’s
allegation suggests a new claim of disparate treatment discrimination, not breach.
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Subsequent Acts of Discrimination

Pursuant to 29 C.F.R. § 1614.504(c), allegations that subsequent acts of discrimination violate a
settlement agreement shall be processed as separate complaints. In addition to updates to
Complainant’s personnel file (other than those in A.6. and A.9., the SA and WAH Agreement do
not make any reference to the Agency’s obligations concerning reassignment of Complainant’s
job duties, delivering software updates and equipment and providing professional opportunities.
Complainant alleges that his duties “continuously diminished” since entering the SA and WAH
Agreement, and ongoing, through his retirement on April 15, 2019. He provides email evidence
of multiple instances where learned his job duties were reassigned without notice. Complainant
repeatedly links the reassignment of his job duties, to his signing of the SA and WAH
Agreement, and alleges the same management officials are involved, indicating a new claim of
reprisal for engaging in EEO activity.

As these allegations do not arise from a breach of the Agreement, they will not be adjudicated in
this Decision. If Complainant intended to raise a claim of retaliation, Complainant should
contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105.

CONCLUSION

Accordingly, we AFFIRM the Agency’s finding that it was not in breach of the July 18, 2017
Settlement Agreement.

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 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. 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;
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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 (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 (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.
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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

September 30, 2019
Date