0120131134
06-20-2013
Larry Douglas, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Larry Douglas,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120131134
Agency No. ARCEMEMP96JAN00028
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency determination (FAD) dated December 18, 2012, finding that the Agency complied 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 complaint, Complainant worked as a Pipelineman on the Agency's Dredge Hurley on the Mississippi River.
On July 22, 1997, Complainant, other complainants, and the Agency entered into a settlement agreement to resolve their joined EEO complaints. The settlement agreement provided, in pertinent part, that:
I.b. The Agency agrees that all the Complainants will be converted from seasonal to full-time permanent status, if they so desire. The Agency agrees that the Complainants will continue in their current positions on the Dredge Hurley during the dredging season. The Agency may at its discretion, during the non-dredging season, reassign the Complainants to other organizational units in accordance with the needs of the District and the abilities of the Complainants....The Complainants' positions in the off-season will be of equivalent grade to the positions which the Complainants held on the Dredge Hurley, and the duties and responsibilities assigned will be commensurate with the Complainants' respective grades....
I.d. The Agency agrees to establish a training program within the current dredging season which will enhance the opportunities for non-licenced, seasonal Ensley Engineer Yard employees to receive Coast Guard licensing necessary for promotion on the Dredge.
III. The Agency agrees that there will be no retaliation or reprisal by any Agency personnel against the Complainants as a result of their EEO Complaints, or any actions taken to resolve these matters, or any other EEO matter.
The settlement agreement also contains a provision, that closely tracks 29 C.F.R. � 1614.504, which sets out the procedure for claiming the Agency did not comply with the settlement agreement, including the time limit for doing so.
By letters to the Agency dated November 1, 2012, and November 28, 2012, Complainant alleged that the Agency breached the settlement agreement.
By way of background, on October 9, 2009,1 Complainant was in an accident in the work place where a vessel he was on capsized, causing him to be under a crew boat and to nearly drown. Thereafter, he allegedly developed post traumatic stress disorder (PTSD). On March 2, 2012, his therapist wrote a letter that Complainant's symptoms were triggered by seeing the Mississippi River, a boat moving on the water, being close to the water, the thought of working on a moving vessel, and so forth, and he was not able to perform the duties of a Pipelineman. The therapist opined that there did not appear to be any accommodations that could be made for him to be a Pipelineman since being on the water was a requirement of the position. The Agency ordered Complainant to work aboard the Dredge Hurley at the beginning of the dredge season in March 2012. Complainant did not comply, citing PTSD. Thereafter, based on a recitation of events in a later proposed removal, the record strongly suggests Complainant was not provided other work, and did not earn further wages. Complainant was removed effective November 25, 2012, for inability to perform his duties.
In his notice of breach, Complainant contended that since 1997 (during the off season) he worked in the electronic shop, and since his accident he worked there year round. In his notice of breach, Complainant contended that his job included working in the electrical shop, and the Agency violated the settlement agreement which promised him year round work when it ordered him to work on the Dredge Hurley and removed him. He also contended that the Agency failed to reasonably accommodate him and discriminated against him based on EEO activity when the above occurred. Further, Complainant contended that the Agency repeatedly refused to provide him training, as well as other complainants, which was required under the settlement agreement and its anti-retaliation provision.
In its FAD, the Agency found that it did not violate the settlement agreement. It found that under the settlement agreement the complainants would continue in their current positions and it had discretion to reassign them according to the Agency's needs. The Agency found that the settlement agreement did not guarantee Complainant a position in the electric shop or require it to maintain him in his pipelineman position or reassign him to a position in the electric shop or anywhere else if he was medically incapable of performing the essential functions of his position of record. The Agency submitted testimonial evidence that contrary to Complainant's claim, it was still the dredging season when he was removed for inability to perform his pipelineman duties.2
The Agency found that Complainant's November 2012 breach allegation regarding training was untimely because the settlement agreement required the Agency to establish a training program within the "current year" (the settlement agreement was signed in 1997), so his claim of breach on this matter some 15 years later was far beyond the 30 day time limit to raise breach. Pointing to evidence in the record, the Agency also found that it complied with the training requirement. The evidence showed that the Agency established a Marine License Training Program, in accordance with the settlement agreement in 1998, and that Complainant signed up for the training that year but withdrew for medical reasons, and the training program was ongoing.
The Agency advised that Complainant's reprisal claim should be processed as a new complaint and that the record suggested he already initiated a new EEO complaint thereon.
On appeal, Complainant argues that that he was working in the electrical shop when he was removed for inability to perform pipelineman duties, that there were no pipelineman duties to perform then because the dredging season was over, that under the settlement agreement the Agency was to provide him year round employment, and the Agency violated this. He also argued that he was discriminated against when he was required him to perform duties on a boat on the Mississippi River. He makes no argument regarding training.
In opposition to the appeal, the Agency reiterates the findings in the FAD. It also refers to the EEOC's decision in Douglas v. Department of the Army, EEOC Appeal No. 0120083366 (Sept. 25, 2008). In June 2008, Complainant contended that the Agency violated the same settlement agreement when it assigned him back to the Dredge Hurley prior to seasonal dredge employees being called back to work. In finding no breach, the EEOC ruled that the settlement agreement did not contain any restrictions on the Agency's authority to assign/reassign Complainant back to the Dredge Hurley or leave him on the Dredge as its needs dictate.
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, Complainant argues that the Agency violated the settlement agreement when it assigned him to duties outside his medical restrictions, and terminated him for inability to perform the duties. As the EEOC found in Douglas v. Department of the Army, EEOC Appeal No. 0120083366 (Sept. 25, 2008), the settlement agreement contains no restrictions on the Agency assigning Complainant to the Dredge Hurley as a Pipelineman. Accordingly, Complainant has not proven breach regarding the above matters.
To the extent Complainant is alleging he was denied training on dates more than 30 days prior to his notice of breach on November 1, 2012, his breach claim regarding training is untimely. 29 C.F.R. � 1614.504(a). Further, Complainant has not specifically identified any training he was denied within the time limit, and on appeal does not contest the Agency's finding that it has an ongoing training program in compliance with the settlement agreement. Complainant has not established a breach of the settlement agreement regarding training.
Complainant also alleged that he was discriminated against regarding being ordered to work on the Dredge Hurley in March 2011, his removal, and the denial of unidentified training. EEOC Regulation 29 C.F.R. � 1614.504(c) states that allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints rather than under the regulatory section regarding compliance with settlement agreements.
Accordingly, the Agency should have processed these new claims of discrimination in accordance with 29 C.F.R. � 1614.106. See 29 C.F.R. � 1614.504(c). We note that on February 5, 2013, Complainant appealed a FAD dated January 10, 2013, dismissing a new complaint (ARCEMEMP12NOV04499). According to the FAD, Complainant alleged in the complaint that he was discriminated against based on his race, disability and reprisal ("March 2012 - complainant") when the Agency proposed his removal in October 2012, and in November 2012 issued him a decision to remove him.
In this decision we are only addressing Complainant's breach claim. The EEOC will separately address the appeal on complaint ARCEMEMP12NOV04499.
The FAD is AFFIRMED. The Agency shall comply with the order below.
ORDER
The Agency shall treat the allegations of discrimination in Complainant's November 1, 2012, and November 28, 2012 claims of breach as a request for EEO counseling, and counsel Complainant and process the matters in accordance with 29 C.F.R. � 1614.105(b)(1) et seq. The Agency shall acknowledge to Complainant that it has received his request for counseling within thirty (30) calendar days of the date this decision becomes final. To the extent allegations Complainant raises in any consequent complaint are the same as those in complaint ARCEMEMP12NOV04499 or other later complaint, the Agency may merge the complaints, if they are in an appropriate posture under 29 C.F.R. Part 1614.
A copy of the Agency's letter of acknowledgment to Complainant must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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
June 20, 2013
__________________
Date
1 In his notice of breach, Complainant mistakenly wrote the accident occurred in 2006. It actually occurred on October 9, 2009.
2 On appeal, Complainant submitted an Agency newspaper article that the dredging season usually ends in early November, but was extended and did not end until late January 2013.
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0120131134
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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