0120142725
08-09-2016
Wes L.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wes L.,1
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120142725
EEOC Hearing No. 570-2011-00366X
Agency Nos. OS-10-0155; OS-11-0078
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated June 13, 2014, 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 compliance action, Complainant worked as a Financial Specialist at the Agency's Office of Financial Management facility in Washington, DC.
On February 7, 2012, Complainant and the Agency entered into a settlement agreement to resolve Complainant's EEO complaint (identified as Agency No. OS-10-0155, EEOC No. 570-2011-00366X). The settlement agreement also incorporated by reference one other complaint, Agency No. OS-11-0078. The settlement agreement provided, in pertinent part, that:
(1) The parties agree that this is a global settlement agreement. Therefore, by executing this Agreement, the parties agree that this Agreement will constitute a withdrawal with prejudice and release by the Complainant of any and all formal or informal appeals and complaints...against the Agency ... pending or not now pending;
(8) Complainant will be permitted to telework, at a minimum, one day every pay period, barring a need for Complainant to be in the office;
(10) "Complainant and [a named management official] will develop an Individual Development Plan (IDP) for Complainant's new position that includes training dollars dedicated to his CGFM certification and accounting courses needed to reach the 24 hour criteria;"
(11) Execution of this Agreement by the Complainant will constitute a withdrawal with prejudice of all pending claims against the Agency [emphasis added]; and
(18) This Agreement contains the complete understanding of the parties regarding the terms and conditions of this Agreement. There are no other terms express or implied.
The parties signed the Agreement on February 7, 2012. Complainant began teleworking on February 12, 2012. Complainant's supervisor advised Complainant that he considered Complainant's performance to be unsatisfactory. On March 8, 2013, the Chief, Internal Control and Audit Follow-Up Division, issued Complainant a Memorandum, "Subject: Performance Assistance Plan." It advised Complainant that he was "currently performing at a level less than fully successful." Complainant was advised that the Agency determined his presence in the office was necessary for "direct supervision" until his performance improves to a satisfactory level. Complainant was only permitted to telework from February 12, 2012 until March 28, 2013.
By letter to the Agency dated April 27, 2013, Complainant alleged that the Agency was in breach of the settlement agreement. Complainant requested that the Agency implement its terms.
On May 7, 2013, the Deputy Chief Financial Officer and Director, Office of Financial Management sent a Memorandum, Subject: [Complainant - Notice of Breach to the Director of the Office of Civil Rights. The memorandum informed the Director of Civil Rights that he deemed Complainant ineligible to telework and cited the Department's Telework Handbook in support. The Handbook restricted telework to only those with a successful performance rating. That letter referenced OS-12-0117 and OS-10-0155 as Complainant's pending complaints.
The Agency's Compliance Decision stated that the global settlement agreement "settled Agency Complaints OS-10-0155, OS-11-0078, OS-12-0155 and OS-12-0117." 2 The Agency concluded that there was no breach of the Settlement Agreement. The Agency reasoned that Complainant's breach claim only pertained to Term 8, and that, in accordance with Term 8, Complainant had been permitted to telework from February 7, 2012 through March 28, 2013. The Agency reasoned that "Management had good reasons to take the Complainant off telework, namely, to give Complainant an opportunity to improve his performance."
This appeal followed.
On appeal, Complainant disputes that his claim only pertained to Term 8. Complainant asserts that the Agency continues to retaliate against him and terminated his telework arrangement for reasons unrelated to any legitimate business purposes. In addition, Complainant challenges the Agency's determination that his performance was unsatisfactory, noting that the performance rating of record (issued to him in January 2013) was "fully successful." He also claims that the Agency failed to implement Term 10, which required that the Agency develop an Individual Development Plan (IDP) for Complainant's new position and include training dollars dedicated to his CGFM certification and accounting courses.
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. Although the Agency labeled the Agreement as a global agreement, the Agreement expressly identified the EEO complaints to be resolved by the Agreement. The EEOC Case No. 570-2011-00366X specified the single complaint to which it applied (OS-10-0155). Moreover, Term 11 made clear the parties' intention that Complainant was withdrawing "pending claims." Consistent with that provision and public policy, we construe the Agreement to pertain only to known claims in existence at the time of the execution of the Agreement. Moreover, inasmuch as the parties delineated the complaints, as was evidenced by the parties' reference in the Settlement Agreement to Agency No. OS-10-0155 and OS-11-0078, we do not view any other complaints as within the scope of the Agreement.
To the extent that Complainant was alleging that the Agency took adverse actions against him in 2013 (changing performance standards, refusing to sign a property pass, imposing harsher standards based on discrimination or retaliation), these constitute new claims. Stated differently, this decision does not address the two other complaints which the Agency referenced in its Compliance Decision as Agency No. OS-12-0017 and OS-12-0155.
We also are not persuaded by the Agency's argument that it need not comply with the Agreement's telework requirement based on the Agency's policy that disallowed telework for those with less than a successful evaluation. Term 8 permitted telework subject only to one condition. Further, the parties agreed at Term 18 that the Agreement contains the complete understanding of the parties and that there were no other governing terms, express or implied.
In the instant case, the Agreement provided Complainant with a conditional right to telework. The Agreement expressly permitted telework to stop if the Agency determined that Complainant's presence in the office was necessary. Because the Agency determined that, as of March 28, 2013, Complainant's presence in the office was deemed "necessary," the Agency's termination of the telework agreement did not constitute a breach because the determination was not at odds with the terms of the Settlement Agreement. Further, the record shows that Complainant had been counseled as to his work performance prior to the termination of the telework arrangement.
For these reasons, we find that Complainant failed to establish that the Agency breached the Agreement with regard to the telework provision (Term 8 of the Agreement) as of the date of the breach allegation.
On appeal, Complainant stated that he "still has not received CGFM training (Term 10) and the agreement has been in effect for more than two years." We find that the Agency offered no proof with regard to Term 10 to show that it was in compliance with the requirement that Complainant and his named supervisor develop an Individual Development Plan (IDP) for Complainant's new position and that the IDP include training dollars dedicated to his CGFM certification and the accounting courses needed to reach the 24 hour criteria. For this reason, we find that the record supports Complainant's claim that the Agency breached the Agreement, but with regard to Term 10.
When we find a breach, we have two options: 1) reinstatement of the underlying complaint or 2) specific performance. Complainant has already expressed his desire that the Agency be required to provide specific performance. Therefore, we order compliance with regard to Term 10.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision, in part, with regard to Term 8 for the reasons stated herein; and we REVERSE in part with regard to non-compliance with Term 10 and we REVERSE the decision to the extent that the FAD attempted to encompass additional complaints which were not referenced within the scope of the Settlement Agreement.
ORDER (E0610)
Within thirty (30) calendar days of the date this decision becomes final, the Agency is ordered to comply with Term 10. That provision states that Complainant and the named management official "will develop an Individual Development Plan (IDP) for Complainant's new position that includes training dollars dedicated to Complainant's CGFM certification and accounting courses needed to reach the 24 hour criteria."
Within thirty (30) calendar days of the date this decision becomes final, the Agency will provide Complainant and the Commission with an update as to whether the Agency has permitted Complainant to telework, at a minimum, one day every pay period, barring a need for Complainant to be in the office. If the Agency has not permitted Complainant to telework, state the reasons, identify the decision maker(s) for the decision and provide documentation to support the Agency's stated reason(s).
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.
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 (M0416)
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), 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. The requests 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 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
August 9, 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.
2 The Agency's Decision on Compliance" erroneously referenced four Agency complaint numbers. Two complaints (Agency No. OS-12-0117 and OS-12-0155) were not pending claims at the time of the execution of the Agreement.
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