Reginald B.,1 Complainant,v.Eric K. Fanning, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJul 8, 2016
0120142537 (E.E.O.C. Jul. 8, 2016)

0120142537

07-08-2016

Reginald B.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Reginald B.,1

Complainant,

v.

Eric K. Fanning,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120142537

Agency No. ARSHAFTER13JUL02342

DECISION

Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated June 18, 2014, finding that it was not 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 compliance action, Complainant worked as an Administrative Officer at the Agency's US Army Pacific, G1, Mission Support Element (ESE) facility in Honolulu, Hawaii.

On December 13, 2013, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part, that:

(2a) The Agency agrees to transfer Complainant's work supervision to someone other than [the named supervisor] within 60-days of the date of this agreement.

By letter to the Agency dated May 8, 2014, Complainant alleged that the Agency was in breach of the settlement agreement after Complainant received emails and requests from the former supervisor. Complainant acknowledged that immediately after the settlement, he was told by the Director that he had been assigned a new supervisor and would no longer work for the supervisor identified in the settlement agreement. The named supervisor moved to a different location. Complainant stated that for a while, he felt at ease.

After the requests and ongoing interactions, Complainant claimed that the Agency breached the Agreement. His request for relief is unclear. Specifically, he requested that the Agency be ordered to "specifically implemented, further clarification of the settlement or further processing."

In its June 18, 2014 decision, the Agency concluded that Complainant's "noncompliance allegation has been substantiated and a breach of contract has occurred." That same decision also stated that "Complainant appears to have a new supervisor of record." Citing to a management response to Complainant's breach claim, the Agency stated that the named official "is no longer [Complainant's] supervisor in accordance with term 2a of the NSA, but is [Complainant's] coworker in an office of two people ([Complainant] and [the named official])." However, the Agency reasoned that there was a breach because the Activity failed to show that the former official is in fact, rather than in name only, a coworker, and Complainant's evidence showed that the official "is still exercising work supervision over Complainant in breach of the NSA." The Agency's letter notified Complainant of the options of reinstating his underlying settled complaint or seeking specific performance of the Agreement.

This appeal followed.

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 find that the Agreement is valid and binding on both parties.

In the instant case, the Agreement is clear that Complainant was to be placed under different supervision. We note that the Agency's decision does not deny that a breach occurred. We find that the Agency has not shown that, in requiring Complainant to respond to inquiries from his former supervisor, that it was in compliance with the requirement that he be under different supervision and no longer report to his former supervisor. We find, therefore, that the record before us supports the Agency's own admission of a breach of the Agreement.

When we find a breach, we have two choices: specific performance or reinstatement of the underlying complaint. If Complainant choses to reinstate his complaint, he would have to return any monetary relief which he has obtained. If he chooses specific performance, we require that the parties be held to the terms of the Agreement. Therefore, we order that Complainant be provided the option of specific performance of the provisions of the Agreement, or reinstatement of his complaint.

Finally, to the extent that Complainant may be raising new claims of discrimination or retaliation, he is advised to contact the EEO Counselor to raise his claims, because they are viewed as subsequent new actions, unrelated to this breach claim.

CONCLUSION

Accordingly, we AFFIRM the finding that the Agency breached the Agreement. We REMAND to the Agency for actions consistent with the Order below.

ORDER

The Agency is ordered to take the following remedial action:

1. Within thirty (30) calendar days of the date this decision becomes final, the Agency is ordered to notify Complainant of his option to: (1) reinstate his underlying complaint by returning to the status quo prior to the signing of the settlement agreement, or (2) to obtain specific performance of the agreement. The Agency shall also notify Complainant that he has fifteen (15) calendar days from the date of his receipt of the Agency's notice, pursuant to this decision, within which to notify the Agency either that he wishes to return to the status quo prior to the signing of the agreement or that he wishes to allow the terms of the agreement to stand. Complainant shall be notified that in order to return to the status quo ante, he must return any monetary benefits received pursuant to the agreement. The Agency shall determine its obligations due to Complainant, and return of consideration or benefits due from Complainant, within thirty (30) calendar days of the date this decision becomes final, and shall include such information in the notice to Complainant.

2. If Complainant elects specific performance, the Agency shall notify Complainant that the terms of the settlement agreement shall stand and the Agency will abide by all of the terms of the Agreement, which in this case shall include removing Complainant from any de facto supervision by the official named in the settlement agreement.

3. If Complainant elects to reinstate his EEO complaint, the Agency shall resume processing the EEO complaint from the point processing ceased. The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.

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. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.

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/she 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 (M0815)

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 tends 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), 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, 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 (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

July 8, 2016

__________________

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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