0120123376
01-24-2013
Luciano Iorizzo, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Luciano Iorizzo,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120123376
Agency No. ARFTEUS11AUG03305
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated ***FAD date DT***, 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 him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On April 24, 2012, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(b) Issue Complainant an award commensurate with the Level 1 Excellence performance appraisal (as described above) calculated as follows: the average percentage award of other ATSC employees at the GS-15 grade who also received a Level 1 excellence rating for the same rating period (2010-2011), The Agency will initiate the process to complete this action within thirty (30) calendar days if the effective date of this agreement.
(e) Move Complainant's office (including furniture and computer currently located in his office on the first floor) to the second floor on building 2114. Move the offices of Complainant's support staff, especially the Operations Officer and Program Assistant (including the contents of their offices) to the second floor of building 2114. These actions will be completed within sixty (60) days of the effective date of this agreement. These moves will not involve the purchase of new office equipment or furniture.
(f) To pay (complainant's attorney) the amount of $4,500 including full satisfaction of all claims for attorney's fees involving matters that are the subject of this agreement. The Agency shall submit all paperwork necessary for the processing of this payment within fourteen (14) calendar days of the effective date of this agreement, assuming that the Complainant's attorney has provided to the Agency the necessary account and taxpayer identification information. However, because the payment will be processed by the Defense Finance and Accounting Service (DFAS), a Department of Defense organization, the Agency cannot guarantee a date for receipt of payment. If payment is not received by (Complainant's attorney) within thirty (30) days of submission by the Agency of the necessary paperwork, upon notice from (Complainant's attorney) the Agency will immediately contact DFAS and make reasonable attempts to facilitate and expedite the payment.
By letter to the Agency dated July 17, 2012, 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 failed to pay Complainant the monies to which he was entitled, failed to move Complainant's office, and failed to pay the agreed upon amount of attorney's fees.
When the Agency failed to issue a decision on the matter, Complainant filed the instant appeal with the Commission. Upon submission of the complaint file on September 26, 2012, the Agency merely stated "Agency rep did not submit an Agency brief." The file submitted to the Commission did not contain any information regarding compliance. Rather, it contained the underlying complaint file which was settled.
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, there is no evidence or argument by the Agency that it complied with the settlement agreement. Accordingly, based on Complainant's assertions and the lack of appropriate response from the Agency, we find that the Agency is in breach of the agreement and is specifically ordered to comply with its terms as set forth below.
ORDER
The Agency is ordered to take the following actions:
1. Within thirty (30) days of the date this decision, issue Complainant an award commensurate with the Level 1 Excellence performance appraisal calculated as follows: the average percentage award of other ATSC employees at the GS-15 grade who also received a Level 1 excellence rating for the same rating period (2010-2011). The Agency shall provide Complainant with evidence of the calculations used to determine his award.
2. Within thirty (30) days of this decision, move Complainant's office (including furniture and computer currently located in his office on the first floor) to the second floor on building 2114. Move the offices of Complainant's support staff, especially the Operations Officer and Program Assistant (including the contents of their offices) to the second floor of building 2114.
3. Within thirty (30) days of the date of this decision, pay Complainant's attorney the sum of $4,500 plus any additional fees that he may submit in relation to obtaining compliance with this settlement agreement.
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 verifying that the corrective action has been implemented.
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 (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 (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
January 24, 2013
__________________
Date
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0120123376
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120123376