0120131736
08-30-2013
Philip S. Sutsko, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Philip S. Sutsko,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120131736
Agency No. 11-65236-03213
DECISION
Complainant filed a timely appeal with this Commission from the Agency's response dated February 20, 2013 to Complainant's allegation of breach, finding that it was in compliance with a November 7, 2011 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On November 7, 2011, Complainant and the Agency entered into a settlement agreement to resolve a matter which was pursued in the EEO complaint process. The settlement agreement provided, in pertinent part, that:
4. Therefore, in consideration of the premises and mutual promises contained herein, the Agency, in accordance with applicable statutes, agrees:
a. To reassign the complainant to a NO-0343-04 position in code 89 and to provide the complainant a 5% increase ($3,246.75) in salary which was calculated by an SSC Atlantic Personnel Management Advisor based on complainant's current base pay of 64,935.00 per annum, without consideration of any pay adjustment that may be made as result of complainant's 4 October 2011 performance reconsideration request. The Request for Personnel Action (RPA) for the reassignment and the 5% increase will be submitted to the HRSC within 10 work days of the effective date of this agreement.
By emails to the Agency dated December 4, 2012, January 22 and 25, 2013, Complainant alleged breach. Specifically, Complainant alleged that approximately ten and a half months after the signing of the agreement, his supervisor informed him in September 2012, that he was being "reassigned" to code 833. Complainant further stated at the time he signed the agreement "to my best recollection, which stated that I would be re-assigned to Code 89."
Further, Complainant stated that on February 20, 2013, the EEO Deputy stated that Complainant was only "detailed" to code 833, therefore, the settlement agreement was not breached. Complainant stated "it is my perception that this move is continued retaliation against me for filing my original EEO complaint against the command's Inspector General...I was moved only 10 1/2 months after signing a Settlement Agreement - - to a position I have no experience in and a code that I did not agree to."
Finally, Complainant requested that the Commission assign an investigator to review his breach allegations.
The record contains an email dated February 20, 2013 from the EEO Deputy. Therein, the EEO Deputy notified Complainant that his detail "in 833 will end at COB on Friday, 22 February 2013. You will resume your work on the Specific Mission Destination processing on Monday, 25 January 2013. Your new cube is 1-183, located downstairs in the 8.0 area. The cube is ready for you to begin moving and the jack should be hot on Monday. Welcome back."
The record reflects that while Complainant contacted Agency management in an effort for resolution, the Agency did not issue Complainant a final decision on his claim of breach. Therefore, Complainant filed his appeal with the Commission.
ANALYSIS AND FINDINGS
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).
On appeal, Complainant argues that he was informed that he was being "detailed" to Code 833 "only after submitting an email relating my desire to officially make a complaint regarding my Settlement Agreement being breached. If I was 'only detailed' why were they planning to assign [a named female employee] to take my place?"
In the instant case, we find that the Agency breached the subject settlement agreement. First, assuming arguendo that the move was a detail as asserted by the Agency, we note that the settlement agreement does not explicitly state that the Agency can detail Complainant to a different code unit, other than code 89. Second, we note that the move to code 833 occurred within approximately ten months of the execution of the settlement agreement. Finally, we note that Complainant alleged that he was being retaliated against for filing an EEO complaint against the Office of Inspector General when he was moved to a position in code 833, where he had no experience.
Upon a finding that an agency has breached a settlement agreement, a complainant has the choice of specifically implementing its terms or reinstating the complaint from the point where processing ceased. 29 C.F.R. � 1614.504(a). Complainant has requested neither. However, given the circumstances of this case, we determine that reinstatement of the underlying complaint is the more appropriate remedy.
The Agency's final decision finding no breach of November 7, 2011 settlement agreement is REVERSED and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
Within thirty (30) calendar days from the date this decision becomes final, the Agency is ordered to resume processing of Complainant's underlying complaint that was the subject of the instant settlement agreement, from the point where processing ceased. The Agency shall acknowledge to Complainant that it has reinstated and resumed processing of Complainant's complaint.
A copy of the Agency's notice to Complainant, and any other supporting evidence that demonstrates reinstatement and continued processing of the complaint, 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 (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), at 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
August 30, 2013
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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