Wes S.,1 Petitioner,v.Sonny Perdue, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.

Equal Employment Opportunity Commission

Sep 18, 2019

2019002871 (E.E.O.C. Sep. 18, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Wes S.,1
Petitioner,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.

Petition No. 2019002871

Appeal No. 0120181060

Agency No. OCFO201500596

DECISION ON A PETITION FOR ENFORCEMENT

On May 14, 2019, the Equal Employment Opportunity Commission (EEOC or Commission)
docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC
Appeal No. 0120181060 (July 19, 2018). The Commission accepts this petition for enforcement
pursuant to 29 C.F.R. § 1614.503. Petitioner alleged that the Agency failed to fully comply with
the Commission’s order in 0120181060.

BACKGROUND

At the time of events giving rise to this complaint, Petitioner worked as an Information
Technology Specialist, GS-14, at the Agency’s USDA Office of the Chief Financial Officer,
National Finance Center facility in New Orleans, Louisiana.

On July 11, 2016, Petitioner and the Agency entered into a settlement agreement to resolve an
EEO matter, identified as Agency No. OCFO-2015-00596. In addition, the settlement agreement
referenced two of Petitioner’s other complaints, identified as Agency Nos. OCFO-2014-00282
and OCFO-2016-00505. The settlement agreement provided, in pertinent part, that:

1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when
the decision is published to non-parties and the Commission’s website.
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(4A) Within thirty (30) days of the last date this agreement is signed, the
Agency will restore twenty-five (25) hours annual leave to [Petitioner’s]
annual leave balance.

(4B) Within thirty (30) days of the last date this agreement is signed, the
Agency will transfer [Petitioner] to the Information Technology Services
Division (ITSD), Technical Services Directorate, Mainframe Engineering
Branch (MEB).

(4C) Within sixty (60) days of the last date this agreement is signed, the
Agency shall provide eight (8) hours of EEO training to the named
responsible managers as to EEO Sensitivity and appropriate Management
Behavior.

(5) Petitioner agrees to dismiss with prejudice “EEOC Complaints No #461-
2016-00032x; Agency No. OCFO-2014-00282; OCFO-2015-00596; and
OCFO-2016-00505.
. . .

(6B) Both parties agree “This is the entire agreement between the Petitioner and
the Agency. The Agency has made no promises to the Petitioner other
than those in this Agreement.

By an email communication to the Agency, dated June 26, 2017, Petitioner alleged that the
Agency was in breach of provision (4C) of the settlement agreement. In response, an Agency
official informed Petitioner, on that same day, that “the training of the RMOs in your settlement
agreement is actively being discussed with OASCR and NFC management for processing.” In a
subsequent letter, Petitioner again alleged that the Agency remained in breach of the settlement
agreement, and he requested that the Agency implement its terms. Specifically, Petitioner
alleged that the Agency failed to provide the eight hours of EEO Sensitivity training and
appropriate Management Behavior training to four named responsible managers.

The Agency did not issue a breach determination. Petitioner appealed to the Commission. In our
prior decision, Wes S. v. Department of Agriculture, EEOC Appeal No. 0120181060 (July 19,
2018), we found that the Agency did conduct some training for three managers, but we reasoned
that it was unclear whether all of the management officials, who were to receive training under
the Agreement, actually received the training. The record also did not show the number of hours
of training that each received. We found that the compliance report did not provide sufficient
documentation to determine compliance or address Petitioner’s contention that the Agency did
not provide any specific training to the named officials that it did not provide generally in the
regular course of training.

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Consequently, we remanded the matter back to the Agency to gather the evidence needed to
support a reasoned decision and to issue a written final decision on the breach issue, with new
appeal rights for Petitioner to this Commission. These tasks were to be completed within 45 days
of the date of the remand decision.

The record indicates that the Agency failed to issue the new decision as ordered. On April 10,
2019, we docketed a Petition for the Enforcement of our Order set forth in Appeal No.
0120181060.

Thereafter and subsequent to the docketing of the Petition for Enforcement, the Agency
submitted a Compliance Report. Agency’s Exhibit 1. The Agency acknowledged that two
management officials listed in Petitioner’s complaint did not attend the February 6 - 7, 2018
training and only attended two hours of training on August 28, 2018. A third named manager
only completed six (6) hours of training. The Agency conceded “the record is devoid of any
information which evinces that the two officials received eight hours of EEO training on any
other day.” As such, the Agency itself concluded that the record showed that it “has only
partially complied with the terms of the Agreement.”

Petitioner now asserts that he has rejected the Agency’s request to find management in
substantial compliance and to close compliance. He stated that the Agency clearly did not meet
the 60-day requirement and failed to provide eight hours of EEO training to the named
responsible managers, whom he identified by name. He also asserted that the Agency’s issuance
of general harassment and reasonable accommodation training given to all managers did not
comply with the terms of the Agreement. Petitioner states that “the case should be referred back
to the presiding Court and a decision made as to responsibility and punishment under the Law.”

The Agency maintains that it provided training and that the settlement agreement made no
mention of the training being just for the named managers.

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).

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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).

Initially, we note the Agency did not complete the corrective action ordered in our decision in
EEOC Appeal No. 0120181060 or otherwise show that it fully complied with all of the terms of
the Agreement.

In the instant case, the parties entered a contract in which Petitioner agreed to withdraw his EEO
complaints and the Agency agreed, among other things, that, within 60 days of the days of the
execution of the agreement, the Agency would restore his annual leave and provide eight (8)
hours of EEO training to the named responsible managers. It was undisputed that the required
training was not provided within sixty days of the Agreement. Instead, the training cited by the
Agency was done on February 6, 2018, and February 7, 2018, and split into two-hour segments
for three managers. Petitioner, however, identified five managers as the named responsible
managers. The Agency acknowledged in subsequent communications that only two of the named
officials actually received eight hours of training. One of the named managers only received six
hours of training. No information was provided regarding the training given to two of the
individuals that Petitioner referenced.

Moreover, the record does not show that the training offered was anything other than what the
Agency provided to all of its managers for general training. We have no evidence that the eight
hours of training required by this Agreement was actually delivered to the managers as a result of
this agreement.

We find, therefore, that the record supports Petitioner’s claim that the Agency breached the
Agreement.

Where this Commission finds that the settlement agreement has been breached, the only two
remedies usually available are specific performance of the terms of the agreement or
reinstatement of the underlying EEO complaint at the point processing ceased. See 29 C.F.R. §
1614.504 (c).

Inasmuch as Petitioner did not clearly specify in his notice of breach which remedy was
preferred. we therefore give Petitioner the option, in accordance with this decision and the
ORDER below, of either reinstating his underlying EEO complaints, or specifically enforcing the
terms of the Agreement, which include all of the benefits noted in the July 11, 2016 Agreement.

Because we find that there has not been compliance, we also find that Petitioner is the prevailing
party in this matter. As such, he is entitled to reasonable attorney’s fees incurred in obtaining
compliance with the Agreement.

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To the extent that Petitioner wishes to address new claims of discrimination regarding other
actions that occurred after the execution of the Agreement, he should initiate EEO counseling
with the Agency as any other subsequent claims must be addressed in a separate complaint or
appeal.

For all of these reasons, we find that Petitioner established that the Agency breached the July 11,
2016 Agreement.

CONCLUSION

Accordingly, we REVERSE the Agency’s Breach Decision, as stated in its Compliance Report,
we Grant the Petition for Enforcement and REMAND the matter to the Agency for actions in
accordance with the ORDER below.

ORDER
The Agency is ordered to take the following actions:
1. Within thirty (30) calendar days of the date of this decision, the Agency is ordered to
notify Petitioner of his option to either return to the status quo prior to the signing of the
settlement agreement or to obtain specific performance of the agreement. The Agency
shall also notify Petitioner that he has fifteen (15) calendar days from the date of his
receipt of the Agency’s notice 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. Petitioner 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 Petitioner, or return of consideration or
benefits due from Petitioner, within thirty (30) calendar days of the date of this decision,
and shall include such information in the notice to Petitioner;

2. If Petitioner elects specific performance, the Agency shall notify Petitioner that the terms
of the settlement agreement shall stand and the Agency will abide by all of the terms of
the Agreement;

3. In accordance with the terms of the Agreement and our finding that the Agency breached
the Agreement that required restoration of annual leave and the provision of training, the
Agency shall determine the appropriate amount of annual leave, with interest, and other
benefits due Petitioner, pursuant to the terms of the Agreement and 29 C.F.R. § 1614.501,
no later than sixty (60) calendar days after the date this decision was issued. The
Petitioner shall cooperate in the Agency's efforts to compute the amount of any benefits
due, if any, and shall provide all relevant information requested by the Agency. If there
is a dispute regarding the exact amount of benefits, the Agency shall issue a check to the
Petitioner for the undisputed amount within sixty (60) calendar days of the date of this
decision or the date the Agency determines the amount it believes to be due, whichever is
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earlier. The Petitioner may petition for enforcement or clarification of the amount in
dispute. The petition for clarification or enforcement must be filed with the Compliance
Officer, at the address referenced in the statement entitled "Implementation of the
Commission's Decision."

4. If Petitioner elects to reinstate his EEO complaints, the processing of the EEO complaints
that were the subject of EEOC No. 461-2016-0032X will resume from the point
processing ceased. If any matters remained pending with the Agency, 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 Petitioner that it has received the remanded claims
within thirty (30) calendar days of the date this decision was issued.
5. The Agency shall issue to Petitioner a copy of the investigative file and also shall notify
Petitioner of the appropriate rights within one hundred fifty (150) calendar days of the
date this decision was issued, unless the matter is otherwise resolved prior to that time. If
the Petitioner requests a final decision without a hearing, the Agency shall issue a final
decision within sixty (60) days of receipt of Petitioner’s request.
6. The Agency is further directed to submit a report of compliance in digital format as
provided in the statement entitled “Implementation of the Commission’s Decision.” The
report shall be submitted via the Federal Sector EEO Portal (FedSep). See 29 C.F.R. §
1614.403(g). Further, the report must include supporting documentation of the Agency’s
calculation of back pay and other benefits due Petitioner, including evidence that the
corrective action has been implemented.

ATTORNEY'S FEES
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the
processing of this breach claim. 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 the date this decision was issued. 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 (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
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compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Petitioner and his/her representative.
If the Agency does not comply with the Commission’s order, the Petitioner may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Petitioner 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 Petitioner 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 Petitioner 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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Petitioner 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. 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).
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All requests and arguments must be submitted to the Director, Office of Federal Operations,
Equal Employment Opportunity Commission. Petitioner’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).

PETITIONER’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.
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Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Petitioner’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

September 18, 2019
Date