0120113387
12-23-2011
Leonard Haywood, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Leonard Haywood,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120113387
Agency No. ARAPG10JUN02601
DECISION
Complainant filed a timely appeal with this Commission from a final
Agency determination (FAD 2) dated June 3, 2011, finding that it was
in compliance with the terms of the settlement agreement into which the
parties entered.1 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 this complaint, Complainant
worked as a Supply Technician, GS-5, at the Agency’s Aberdeen Proving
Ground in Maryland. Believing that the Agency subjected him to unlawful
discrimination, Complainant contacted an Agency EEO Counselor to initiate
the EEO complaint process, alleging discrimination based on race.
On August 3, 2010, Complainant and the Agency entered into a settlement
agreement to resolve the matter. It provided, in pertinent part, that:
Desk Audit: [The Director] will submit the aggrieved’s duty position to
the local Civilian Advisory Center (CPAC) for the purpose of a desk audit.
The aggrieved understands that his position can be upgraded, downgraded
or remain the same based on the findings of the desk audit….The desk
audit will be completed no longer than 90 calendar days from the signature
date of the agreement.
In the settlement agreement, the Agency further agreed that it would
give certain people “Consideration of Others Training,” and that
the Director would give Complainant a written apology.
By letter to the Agency’s Equal Employment Opportunity Compliance
and Complaints Review (EEOCCR) office dated March 15, 2011, Complainant
alleged that the Agency breached the settlement agreement. Specifically,
he alleged that it failed to do the desk audit.
EEOCCR contacted the local Agency EEO office, who then obtained
information from a CPAC Human Resources Specialist (Employee Relations).
The Human Resources Specialist wrote that CPAC timely completed the desk
audit of Complainant’s position and the result thereof was that his
work was at the GS-6 level, one grade higher than his current grade.
The Human Relations Specialist wrote that the settlement agreement did
not indicate what action would be taken upon completion of the desk audit.
He wrote that it only stated the aggrieved understands that his position
can be upgraded, downgraded or remain the same based on the findings of
the desk audit. The Human Resources Specialist wrote that in relation
to this language, the Director had two options:
• Agree the position review has reclassified the position to a higher
grade and instruct CPAC to complete the request for personnel action
(RPA) as a reclassification action to upgrade Mr. Haywood’s current
GS-05 position to a GS-06 position;
• Take steps to ensure the duties Mr. Haywood is required to perform to
not exceed the GS-05 grade level, and not require him to be responsible
for performing the higher graded duties.
The Human Resources Specialist wrote that the Director did not respond
on how he wished to proceed.
Agency management argued that it complied with the settlement agreement
by timely completing the desk audit.
On April 8, 2011, the Agency issued FAD 1. It recounted the Agency’s
argument that the settlement agreement did not indicate what action would
be taken upon completion of the desk audit, and the Human Resources
Specialist opinion that if there was a results based follow-on action
that the parties to the settlement agreement expected or assumed would
occur, it was not identified in the settlement agreement.
In FAD 1, the Agency found that the Agency did not fully comply
with the settlement agreement because management did not implement
one of the two above bulleted options set out by CPAC. As relief,
the Agency gave Complaint one of two choices. The first choice was
rescind the settlement agreement, go back to the status quo ante, and
reinstating his informal complaint. The Agency explained that to do this,
Complainant must return the apology letter, and to the extent it has not
already done so, management would not be required to complete training.
The second choice was for the settlement agreement to be implemented.
The Agency found that if Complainant picked the second choice, the Agency
would have to comply with the settlement agreement by implementing one
of the CPAC options, i.e., promote Complainant or take steps to ensure
his duties do not exceed the GS-05 level. In FAD 1, the Agency ordered
Complainant to specify his choice.
Complainant replied to the Agency that he wanted a promotion pursuant
to the audit with backpay. He wrote that management had the privilege
to remove the duties that warranted an upgrade and all he could then
do was revisit his complaint. Complainant added that he had the right
to vacate the settlement agreement and continue at the formal stage,
but he was willing to meet and work something out.
In FAD 2, the Agency found that while Complainant’s response did not
state which choice he was making, he made a de facto election to have
the settlement agreement enforced since he did not return the letter
of apology, a requirement to return to the status quo ante and have his
informal EEO case reinstated. The Agency found that management decided
to comply with the settlement agreement by ensuring that Complainant
would no longer be required to perform GS-6 duties. It referred to a
May 12, 2011, letter by an Agency representative that the Agency would
comply with its obligations by taking steps that week to ensure that
Complainant’s duties do not exceed the GS-5 level. Accordingly,
the Agency found that it was in compliance with the settlement agreement.
On appeal, Complainant makes no comment.
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).
We agree with the Agency’s finding that Complainant opted to have the
settlement agreement implemented. Based upon a reading of the settlement
agreement, we find the plain meaning was that Complainant’s position
would be upgraded, downgraded, or remain the same based on the findings
of the desk audit. The settlement agreement did not contain language
that Complainant’s duties would be adjusted to achieve a specified
grade level, and this was not implied. Rather, the settlement agreement
contained language about upgrading, downgrading, or maintaining the same
grade based on the findings of the desk audit.
Accordingly, we find that the Agency breached the settlement agreement.
The Agency shall comply with the order below.
ORDER
The Agency is ordered to take the following remedial action:
1. The Agency shall retroactively promote Complainant to GS-6, effective
October 29, 2010. It shall retroactively assign him the step he would
have received had the Agency promoted him pursuant to the desk audit on
October 29, 2010, with step increases he would have received, if any,
but for the breach;
2. The Agency shall determine the appropriate amount of back pay,
with interest, and other benefits due Complainant, pursuant to 29
C.F.R. § 1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. The Complainant shall cooperate in
the Agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the Agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the Agency shall issue a check to the Complainant for the
undisputed amount within sixty (60) calendar days of the date the
Agency determines the amount it believes to be due. The Complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
The Agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
Agency's calculation of backpay and other benefits due Complainant,
including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by
29 C.F.R. § 1614.501(e)(1)(iii)), he is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid
by the Agency. The attorney shall submit a verified statement of fees
to the Agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The Agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.
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
December 23, 2011
__________________
Date
1 The appeal was not postmarked, and was received by the Commission on
July 13, 2011. The Agency sent FAD 2 to Complainant by certified mail,
return receipt requested, but the record contains no information on when
he received FAD 2. Given this, we deem the appeal to be timely.
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0120113387
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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