Leonard Haywood, Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionDec 23, 2011
0120113387 (E.E.O.C. Dec. 23, 2011)

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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