0120131437
06-26-2013
James E. Temple, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (U.S. Secret Service), Agency.
James E. Temple,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(U.S. Secret Service),
Agency.
Appeal No. 0120131437
Agency No. HS-USSS-17927-2010
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated March 19, 2013, finding that it was in compliance with the terms of a February 3, 2011 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On February 3, 2011, Complainant and the Agency entered into a settlement agreement to resolve a matter that had been pursued in the EEO complaint process. The settlement agreement provided, in pertinent part, that:
2. Complainant and the Agency agree to the following in full settlement of all and all claims arising from and/or related to the Complainant's Formal Complaint.
a. The Agency:
..........
iii. will, effective the first day following the signing of this Agreement by all parties, and continuing for the next five years, place the Complainant under the supervision of an Assistant Special Agent in Charge (ASAIC) within the AOD, or similar position (this position is currently held by [named ASAIC]). During this time, the Complainant will remain a Lead Property Management Specialist, GS-301-13, working under his current position description except and unless the Complainant is reassigned in accordance with paragraph iv. below or otherwise seeks a chance of position which is granted, is formally the subject of a reduction in force, is removed or demoted from his position or grade level under the provisions of Title 5 of the United States Code, Chapters 43 or 75, or should the Complainant fail to maintain a Top Secret security clearance.1
..........
Following the signing of the instant agreement, Complainant was provided a choice of three options for inclusion in the agreement. Specifically, Complainant was given the choice of remaining in Property Management Branch (PMB) under the direct supervision of a named male ASAIC, accepting reassignment to the Administrative Operations Division (AOD) warehouse or accepting reassignment to the Remote Delivery Site (RDS). The record reflects that Complainant chose his current assignment in the AOD warehouse.
By letter to the Agency dated January 30, 2013, Complainant alleged breach of provision 2.a.iii. Specifically, Complainant alleged that the Agency did not allow him to remain a Lead Property Management Specialist, working under his current position description.
In its March 19, 2013 final decision, the Agency noted that Complainant's claim of breach was untimely raised. The Agency noted that on March 27, 2012, Complainant sent an email to a named Agency official stating "for the past year, I was given limited responsibilities under my Position Description of Lead Property Management Specialist." The Agency also noted that the record reflects that on July 2, 2012, Complainant became aware that four Property Management Specialists would be rotating through a detail as Acting Lead Property Management Specialist. The Agency indicated his claim of breach on March 27, 2012 and July 2, 2012 was well beyond the 30 days of when he should have been aware of a breach.
The Agency further found that assuming, for the sake of argument only, Complainant's breach allegation was timely, the Agency complied with its terms. Specifically, the Agency stated that according to Agency management, Complainant was reassigned from PMB and removed under the supervision of the Chief of Branch to include not receiving any assignments from the Chief in February 2011. The Agency also found that Complainant remained a Lead Property Management Specialist and worked under his current position description.
The record contains a copy of the EEO Director's memorandum dated February 20, 2013. Therein, the EEO Director stated that since the signing of the subject agreement, Complainant "has been consistently supervised by ASAIC's within AOD. From 2011-2012 the Complainant was supervised by [named ASAIC]...In March 2012, [named ASAIC] left the AOD and the Complainant was supervised by [named ASAIC]."
Further, the EEO Director stated that Complainant "remains a Lead Property Management Specialist, GS-301-13 working under the same position description he held at the time of the February 3, 2011 Agreement. Complainant has been given assignments within his position description."
With respect to Complainant's allegation that he was offered and encouraged to accept a new Mail Operation Security Manager position at the RDS, the EEO Director stated that the named Special Agent in Charge (SAIC) "believed that this position was the best fit of any vacancy in AOD for the Complainant's background in property management, given that the Complainant could not work in the Property Management Branch under the terms of the Agreement. In March, 2012, the Complainant repeatedly indicated that he was not interested in taking the Mail Operation Security Manager position at RDS." The EEO Director stated that Complainant "indicated his belief that his current assignment at the AOD warehouse was within his position description and that he wanted to remain there as a Lead Property Management Specialist."
Moreover, the EEO Director stated ultimately, the named SAIC assigned another employee to the Mail Operation Security Manager position at the RDS.
Complainant, on appeal, argues that his breach claim was timely raised. For instance, Complainant states that his March 27, 2012 email alleging breach was "proofread by the EEO office prior to sending to [SAIC] and [SA]...the agency was notified that I was unhappy and wanted to submit a breach of agreement at that time." Complainant stated, however, the EEO office set up a meeting with him, the USSS Supervisory Attorney Advisor, EEO Specialist, and a named SAIC on April 5, 2012. Complainant stated that during the meeting, the SAIC told Complainant that he could not put Complainant back in the PMB to work and "I presented my reasoning about me wanting to remain in my career field, and asked him if he would transfer some of the functions of my job to me at the warehouse and my willingness to assist the Division with RDS in whatever capacity is needed."
Complainant further stated that the April 5, 2012 meeting, he felt that the SAIC and SA "were going forth with the move to RDS without giving me the property functions that I had expressed at the legal meeting and in the PD. '[SA] was not in charge until 5/17/2012' of the PMB Branch at the time of this meeting. Upon Further conversation after [SAIC] left with [SA] I discovered that I was right that [SAIC] had no intentions of transferring any property function duties from the PMB warehouse for me as stated in the Legal meeting 5 April 2012 and my proposal."
Moreover, Complainant argues that he should have been given more of the travel assignments that he requested and that it was unfair that the Branch Chief was assigned to travel to San Francisco and Miami in a property management capacity.
In response to Complainant's appeal, the Agency argued that after choosing the assignment to the AOD warehouse in the instant agreement, Complainant "cannot now claim that the Agency has breached the Agreement by keeping the Complainant in the AOD warehouse, managing the same property tasks that were being done at the warehouse at the time of his assignment there. The fact that the Complainant may now regret having chosen this assignment does not require the Agency to give him a preferred assignment of his choosing."
Further, the Agency argues that the instant agreement does not include any obligation on Agency management to remove functions or duties from PMB and assign them to Complainant at the warehouse.
The instant appeal followed.
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).
Upon review, we find Complainant's breach claim was untimely raised. The settlement agreement informed Complainant that if he believed the Agency had failed to comply with the terms of the agreement, he was required to notify the Office of Equal Employment Opportunity and the Office for Civil Rights and Civil Liberties of the alleged noncompliance within 30 calendar days.
However, even assuming that Complainant's breach allegation was timely raised, we note that the Agency complied with provision 2.a.iii. Provision 2.a.iii. provides for an affirmative Agency obligation to place Complainant under the supervision of a named ASAIC within the AOD and to assure that Complainant remains as Lead Property Management Specialist. Complainant asserts, however, that he should have been given a new preferred assignment of his choosing and more travel assignments. If Complainant had wanted to be given a new preferred assignment and more travel assignments following the execution of the settlement agreement, he should have included such a provision as part of the subject agreement. See Jenkins-Nye v. General Services Administration, EEOC Appeal No. 01851903 (March 4, 1987).
The Agency's finding of no breach of provision 2.a.iii. of the February 3, 2011 settlement agreement was proper and 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 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 26, 2013
__________________
Date
1 The settlement agreement also provides for the Agency to reassign Complainant from the Property Management Branch (PMB) and from the supervision of a named Agency official; and assure that the named Agency official would have no supervisory overnight or other responsibilities with regard to Complainant, including, but not limited to, assigning tasks for a period of five years. These provisions are not at issue in the instant case.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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