Sandy E,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.

Equal Employment Opportunity CommissionDec 20, 2017
0120170179 (E.E.O.C. Dec. 20, 2017)

0120170179

12-20-2017

Sandy E,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Sandy E,1

Complainant,

v.

Sonny Perdue,

Secretary,

Department of Agriculture

(Animal and Plant Health Inspection Services),

Agency.

Appeal No. 0120170179

Agency No. APHIS201500644

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated September 15, 2016, 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 Program Analyst at the Agency's facility in Fort Collins, Colorado. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On April 6, 2015, Complainant and the Agency entered into a settlement agreement to resolve the matter.2 The settlement agreement provided, in pertinent part, that:

(A) In resolution of all alleged employment concerns raised by Complainant in the EEOC and all other claims filed by the Complainant, the Agency agrees to the following terms:

(4) Complainant shall be voluntarily promoted under a Veterans Recruitment Authority from a GS-303-07, Step 5 Program Assistant to a GS-0343-09, Step 1 Program Analyst position; the GS-9 is the full performance level of his new position. The promotion will be effective, without back pay, April 6, 2014. Effective on April 5, 2015, without back pay, [Complainant] will increase to GS-9, Step 2...

On August 27, 2015, Complainant filed an EEO complaint, Agency No. APHIS-2015-00644, wherein his alleged that his request for a reclassification of his position was denied, and that management violated the terms of his settlement agreement. In Appeal No. 0120160942 (June 14, 2016, we found that Complainant was alleging that the Agency was delaying his promotion, and ordered the Agency to issue a decision on the breach claims. Complainant alleged that the Agency did not promote him from GS-7 to GS-9.

In its September 15, 2016 FAD, the Agency concluded it was not in breach of the agreement. The Agency provided copies of documents showing that Complainant was promoted to GS-09 effective April 6, 2014, and he received the paperwork in June 2015.

The instant appeal followed. In his appeal, Complainant appears to complain about the amount of time it took the Agency to process the papers. Complainant states that he did not receive the paperwork related to his increase to GS-9, step 2 until July 2015. Complainant sought to have his complaints reinstated and consolidated.3

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, we find the agreement valid and binding.

Further we find that the Agency has provided evidence that it moved to comply with the agreement promptly. Complainant does not argue that the Agency failed to comply with the agreement, rather he feels that it took too long. However, we note that the agreement did not provide a time frame for the Agency's actions. We do not find that the Agency overly delayed in this case.

Accordingly, the Agency's determination that it was not in breach of the agreement is AFFIRMED.

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

December 20, 2017

__________________

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.

2 The last signature on the agreement was April 6, 2015. We note that Complainant also received a $25,000 lump sum payment, and his representative received $5,000.

3 Were the complaints reinstated, Complainant would have to return to the status quo (i.e. GS-7) and return all monies received.

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0120170179