0120152533
02-16-2017
Latricia P.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Latricia P.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Natural Resources Conservation Service),
Agency.
Appeal No. 0120152533
Agency No. NRCS-CF-2014-00397
DECISION
On July 13, 2015, Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated June 22, 2015, 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
Believing that the Agency subjected her to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On October 15, 2014, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that the Agency agrees:
(1) To suspend Complainant for one (1) day instead of the twenty-five (25) days as proposed in the Proposed Suspension Letter dated January 22, 2013, issued to Complainant. In addition, the suspension SF-52 and the return to duty SF-52 will be submitted at the same time. The SF-52s will be submitted to the [Manager] for signature and [the Agency] for processing.
On December 2, 2014, the Agency's Office of General Counsel (OGC) issued Complainant a letter stating that the Agency was unable to implement the agreement because the Office of Special Counsel (OSC) was still conducting an investigation of the Agency. OGC indicated that any agreement entered into without the express consent of OSC was considered null and void.
By letter to the Agency dated December 19, 2014, Complainant alleged that the Agency was in breach of the settlement agreement. Complainant requested that the Agency specifically implement its terms but for the issue of the 25-day suspension for that is the only issue that needed to be reviewed by OSC. As such, the Agency should implement the other provisions of the agreement noting that there was consideration even if provision (1) was set aside. Complainant was issued the 25-day suspension effective March 9, 2015.
In its June 22, 2015 FAD, the Agency concluded the agreement was null and void. At the time of the agreement, the Agency noted that neither Complainant nor the Agency had the authority to enter into the agreement without consent of OSC. The Office of Personnel Management (OPM) was conducting an investigation into the Agency and then OSC had initiated an investigation. Pursuant to regulatory authority, OSC, due to its investigation of the Agency, was vested with sole and absolute authority to resolve any and all disciplinary matters against Complainant. Therefore, the Agency indicated it did not have the authority over the issue and the agreement was not enforceable. The Agency determined that Complainant had three options: 1) finding the agreement unenforceable and reinstate the underlying complaint; 2) appeal the decision to the Commission; or 3) contact OSC to request authorization of the agreement noting that Complainant's disciplinary action had been approved by OSC on December 14, 2012.
Complainant appealed raising concern over the Agency's assertion that she was obligated to contact OSC. She noted that she had reached an agreement with Agency officials to resolve her EEO complaint. She stated that it was not her fault that the Agency failed to obtain approval to settle the complaint and the agreement should be implemented.
In response to Complainant's appeal, the EEOC's Office of Federal Operations (OFO) sent a letter to the Agency dated August 26, 2015, notifying it of the appeal and requesting the complaint file be submitted to OFO within thirty days. A checklist detailing the complaint documents requested was also enclosed. When no file was submitted by the Agency, OFO repeated the request for submission of the complaint file in several email communications with appropriate officials at the Agency. To date, the complaint file has not been submitted to EEOC as required by 29 C.F.R. � 1614.403(e). The Agency failed to respond to the appeal.
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 Agency allegedly breached the agreement when, on December 2, 2014, it informed Complainant that the agreement was null and void. Complainant informed the Agency of the alleged breach by letter dated December 19, 2014, well within 30 days of being informed by the Agency that it was not going to implement the terms of the agreement.
We note that the Agency failed to respond to the appeal. Upon review of the record, the Agency failed to provide supporting documentation to substantiate its final decision. Thus, the Agency has failed to substantiate the basis for its final decision. See Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991).
The Agency's own final decision provided Complainant with three options. We note that one option would cure the alleged breach. The Agency placed the responsibility on Complainant to obtain the Agency's authorization to settle the matter from OSC. We find that the Agency erred in doing so. Complainant had the authority to settle the complaint on her behalf without seeking permission from any other entity. At the the execution of the settlement agreement, the Agency gave all appearances to Complainant that it had the authority to settle despite the fact it was under an OSC investigation. It was incumbent on the Agency to obtain the appropriate authority to settle the matter.
Complainant has clearly indicated her preference for implementation of the terms of the settlement agreement rather than reinstatement of her underlying complaint.. Therefore, to cure the issue of the Agency's authority to settle, we find that the Agency should seek OSC authority to execute the agreement at hand. Once the Agency has received a response from OSC regarding the request for authorization, the Agency shall issue a new determination regarding Complainant's claim of breach with appeal rights to the Commission.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER
The Agency shall:
(1) Within 15 calendar days of the date of this decision, contact OSC to seek authorization to execute the settlement agreement at issue.
(2) Within 15 calendar days from receiving the response from OSC, the Agency shall issue a new final determination decision regarding the issue of breach of the agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b).
A copy of the Agency's letter to OSC and subsequent determination 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 (M0416)
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 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. The requests 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 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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. 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
February 16, 2017
__________________
Date
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.
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