0120172470_0120181577
08-07-2018
Lloyd E,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lloyd E,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal Nos. 0120172470
0120181577
Agency Nos. ARTYAD15MAR00987
ARTYAD15DEC04850
Hearing Nos. 530-2016-00048X
530-2016-00394X
DECISION
Complainant first filed an appeal with the with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD1) by the Agency dated September 7, 2017, finding that the settlement agreement entered into by the parties was not void as alleged by Complainant. In addition, the Agency determined that it has complied with the terms of the settlement agreement. Subsequently, Complainant filed a second timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD2) by the Agency dated March 13, 2018, 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
At the time of events giving rise to this complaint, Complainant worked as a IT Specialist, 2210, GS-9 at the Agency's Customer Support Division facility in Tobyhanna, Pennsylvania.
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process filing two formal EEO complaints. The complaints were investigated. Following the investigations, Complainant requested hearings before an Equal Employment Opportunity Commission Administrative Judge (AJ). The complaints were consolidated. The AJ held a settlement conference in which Complainant, his attorney and the Agency attorney participated. An agreement had been reached on March 27, 2017, between Complainant, his attorney (Attorney) and the Agency Attorney. The record indicated that the Agency Attorney had authority to settle the matters. The documents memorializing the terms of the agreement were signed by Complainant, the Attorney, the Agency Attorney, and an EEOC Official who participated in the settlement conference.
Subsequently, the signed terms of the agreement from March 27, 2017 were transcribed into a formalized document entitled "settlement agreement." On May 23, 2017, Complainant signed the formalized document ratifying the terms of the settlement agreement which were agreed upon by the parties in March 2017. Subsequently, on June 8, 2017, Responsible Management Official (RMO) signed the settlement agreement form. We note that the RMO was not involved with the negotiations. The settlement agreement provided, in pertinent part, that the Agency will forward the necessary documents to:
(a)(1) Expunge the five (5) day suspension from the Complainant's Electronic Official Personnel File (e-OPF), Civilian Personnel Online (CPOL), Defense Civilian Personnel Data System (DCPDS), AUTONOA, and submit the necessary paperwork to DFAS to refund the five (5) days of pay for that period, subject to federal, states, and local taxes.
(2) Removed the word "minimum" from the Senior Rater Comments of the Complainant's [December 16, 2015] Civilian Evaluation Report in his E-OPF, Civilian Personnel Online (CPOL) Defense Civilian Personnel Data System (DCPDS), and AUTONOA.
(3) Change Complainant's [December 14, 2016] Civilian Evaluation Report in his E-OPF, Civilian Personnel Online (CPOL) Defense Civilian Personnel Data System (DCPDS), and AUTONOA.
(4) Process the payment of $ 13,000 through DFAS to reimburse Complainant for attorney's fees. This amount is not subject to federal, state or local withholding taxes as it is reimbursement for attorney's fees only and not an award for damages.
(b) No later than 60 days from the date of the execution of this agreement, the Agency will provide the Information Management Division one hour of diversity training.
(c) Within ten (10) days of the execution of this agreement, the Agency will reissue Complainant a request for medical documentation detailing the specific information necessary with regard to Complainant's Reasonable Accommodation request, including any specific office or ergonomic needs.
(d) No later than two pay periods after the signing of this Agreement, Complainant will be detailed for 120 days into an IT Specialist, GS-2210-09 position to work Host Base Security Systems (HBSS), LAN drops, and cyber security issues at the GS-09 level (exclude patching of workstations). Complainant will also report directly to the Chief, Information Management Division.
(e) No later than 120 days from the execution of this Agreement, Complainant will provide the Agency with the medical documentation requesting in paragraph 1(c) above.
(f) Upon the Complainant providing satisfactory medical documentation that Complainant can perform the essential functions for the position stated in paragraph (b), Complainant will be permanently reassigned into this position. Complainant will continue to report directly to the Chief, Information Management Division.
On July 11, 2017, Complainant filed an appeal with the Commission alleging that the settlement agreement should be set aside and his complaints be reinstated. Complainant argued that the settlement agreement lacked consideration for he was to provide medical documentation which was simply part of a request for a reasonable accommodation. He also claimed that the agreement is void because he was under duress and pressured by the Attorney to sign the agreement. In response, the Agency received the appeal and addressed Complainant's claims in its final decision dated September 7, 2017. The Agency determined that it had complied with the settlement agreement. Further, the Agency found that there was no basis to void the agreement.
Subsequently, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency issued him an Internal Revenue Service (IRS) Form 1099 to report the complete payment. Complainant asserts that the payment has become taxable to him at the federal and state levels. As such, he claims that the Agency violated provision (4) of the settlement agreement.
In its March 13, 2018 FAD, the Agency asserted that Complainant's claim that the payment for attorney's fees are not taxable. The Agency indicated that it used the Form 1099 and noted on the form that the payment was for attorney's fees so that Complainant would not incur any tax consequences. Therefore, the Agency concluded that it did not breach the settlement agreement. Complainant appealed restating his claim that the settlement agreement was void and that the Agency breached the agreement.
ANALYSIS
For purposes of administrative economy, the Commission has consolidated the appeals into this single decision.
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 EEOC Appeal No. 0120172470, Complainant asked that the Commission void the settlement agreement on three grounds. First, Complainant asserted that the settlement agreement was void for it lacked consideration. Generally, the adequacy or fairness of the consideration in a settlement agreement is not at issue, as long as some legal detriment is incurred as part of the bargain. However, when one of the contracting parties incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. See MacNair v. U.S. Postal Serv., EEOC Appeal No. 01964653 (July 1, 1997); Juhola v. Dep't of the Army, EEOC Appeal No. 01934032 (June 30, 1994) (citing Terracing v. Dep't of Health and Human Serv., EEOC Request No. 05910888 (March 11, 1992). Complainant claimed that the Agency did not incur any legal detriment based on the request for medical documentation. However, that does not take into consideration all the provisions of the settlement agreement. Taking the agreement as a whole, the Agency incurred legal detriment including paying Complainant $ 13,000, providing Complainant with a detail, expunging Complainant's suspension, and making changes to Complainant's performance ratings. As such, we are not persuaded by Complainant's argument.
Complainant then argued that he signed the agreement under economic duress and undue influence. Because our policy favors the voluntary resolution of discrimination complaints, EEOC examined this coercion claim with much scrutiny. A complainant who has alleged coercion must show an improper threat of sufficient gravity and that the threat induced agreement. Such a threat may be expressed, implied, or inferred from words or conduct, and must covey an intention to cause harm or loss. See Tristan W. v. Dep't of Justice, EEOC Appeal No. 0120171483 (May 31, 2017). We note that the alleged pressure experienced by Complainant was based on the actions of his own attorney. Further, we find that Complainant has not alleged actions on the part of the Agency which would be considered an improper threat. Therefore, we are not persuaded by Complainant's claim that he was coerced.
Complainant also alleged that the RMO should not have been the official signing the settlement agreement for the Agency. Upon review of the record, we find that the parties involved with the settlement agreement were Complainant, the Attorney, and the Agency Attorney. The terms were agreed upon during a settlement conference before the EEOC AJ in March 2017. Complainant, the Attorney, the Agency Attorney, and an EEOC Official signed the documents connected to the provisions of the settlement agreement and the Agency's Attorney had the authority to resolve the matters by the agreement. The Agency took the agreed upon provisions and formalized them into a document and provided it to Complainant. Complainant ratified the agreement in May 2017. At that point, we find that the EEO complaints were resolved. The record does not clearly indicate the reason for the RMO's signature however, we find that in order for the Agency to effectuate the terms of the settlement agreement, the RMO needed to be made aware of the terms of the settlement agreement. As such, we conclude that the settlement agreement was finalized in May 2017 when Complainant signed the settlement agreement. The RMO was only needed to implement the terms of the settlement agreement. As such, we are not persuaded by Complainant's request to void the settlement agreement.
In EEOC Appeal No. 0120181577, Complainant appealed asserting that the Agency breached the settlement agreement when it issued his check for the fees for the Attorney and provided Complainant with a Form 1099 indicating that a payment was made to Complainant to the Internal Revenue Service. He argued that he had to pay taxes on money which the parties agreed upon was not taxable. We note that Complainant received the money. He believes that the Agency provided documentation with the payment which has resulted in additional tax consequences. First, it is outside of the EEOC's jurisdiction to make determinations regarding the tax consequences of any make whole relief. C.f. Stringfellow v. U.S. Postal Serv., EEOC Appeal No. 01A13898 (July 25, 2002); Gaughan v. Dep't of the Treasury, EEOC Request No. 05920163 (July 9, 1992) (in determining the agency did not breach a settlement agreement the Commission relied upon the intent of the parties, as expressed in the agreement, rather than a recent decision on the taxability of backpay awards). To the extent that Complainant believes that the attorney's fee award should not be taxed, he must raise the matter with the Internal Revenue Service in accordance with the procedures established by that agency. See Wrigley v. U.S. Postal Serv., EEOC Petition No. 04950005 (Feb. 15, 1996). As such, we do not find that the Agency breached the settlement agreement as alleged by Complainant.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decisions finding no breach of the settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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
August 7, 2018
__________________
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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0120181577
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0120172470 & 0120181577