Zachariah W.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionApr 26, 20192019000447 (E.E.O.C. Apr. 26, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zachariah W.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2019000447 Agency Nos. NY-16-0432, NY-16-0179, NY-16-0689-SSA DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated February 27, 2018,2 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 Claims Specialist at the Agency’s Springfield Avenue Office facility in Newark, New Jersey. On February 15, 2017, Complainant and the Agency entered into a settlement agreement to resolve his three EEO complaints. The settlement agreement (Agreement) provided, in pertinent part, that the parties agreed: (1) Complainant would receive a lateral reassignment to the Hackensack Field Office effective February 21, 2017; 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 record shows that Complainant received the decision on August 17, 2018, which would make the September 14, 2018 appeal timely. 2019000447 2 (2) Effective February 21, 2017, Complainant and management will create an IDP to include assignments and training appropriate to prepare the Complainant for promotional opportunities in the future; and (3) Complainant will receive a 120-day promotion to the Claims Technical Expert position upon successful completion of the IDP. The Agency assigned Complainant to the Hackensack Field Office, in compliance with provision 1. Shortly after Complainant was transferred to the Hackensack Field Office, management received complaints from Complainant’s female colleagues, who accused Complainant of engaging in potentially inappropriate conduct at the Hackensack location. The Agency conducted an investigation. Although the investigation determined that Complainant’s actions did not rise to the level of sexual harassment, the investigation found that his actions violated the Agency’s standards of conduct. The Agency’s Harassment Prevention Officer recommended to the Area Director (AD) that the Agency should temporarily reassign Complainant from the Hackensack Field Office. Complainant was reassigned. Because the situation could have escalated if the Agency had not removed him from the Hackensack office, the Agency decided not to return Complainant to the Hackensack Field Office. Complainant has remained at the Clifton office. Management stated that it was Complainant’s responsibility to initiate the IDP and he did not follow through. The Agency acknowledged that the requirements of paragraphs 2 and 3 were not met, before Complainant’s reassignment to the Clifton office. By letter to the Agency dated September 28, 2017, Complainant alleged that the Agency was in breach of the Agreement. Specifically, Complainant alleged that the Agency failed to permanently transfer him to the Hackensack location, prepare his IDP plan, or provide him the 120-day detail. He requested that the Agency specifically implement the Agreement terms or that his discrimination complaints “be reactivated.” The Agency concluded that it complied with the Agreement. The Agency reasoned that Complainant received the transfer to the Hackensack Office and that Complainant failed to initiate the IDP. The Agency also found that Complainant failed to meet his burden to show that the Agency failed to comply. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant acknowledged that the Agency “initially complied with the terms of the Agreement,” but thereafter, the Agency breached when it permanently transferred him to the Clifton District Office, did not implement a development plan, and failed to assign him to a 120- day detail. In addition, Complainant appears to allege new claims. He maintains that the Agency has denied him his due process rights and subjected him to a continuing hostile work environment. 2019000447 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). We find the Agreement is valid and binding on both parties. We note that, to the extent the Agreement “assured [Complainant] that he will not be intimidated or harassed for having filed the complaint,” the language was unnecessary. The EEOC laws already prohibit retaliation. Here, the Agreement required Complainant’s lateral transfer to the Hackensack Office. The record shows this was done. Subsequent to the transfer, there was the intervening event and harassment claims, that the Agency determined necessitated Complainant’s reassignment. Further, the Agency’s failure to return Complainant to the Hackensack Office does not reflect, in any fashion, a failure to comply or breach of the settlement agreement. See Complainant v. United States Postal Service (Pacific Area), EEOC Appeal No. 0120123120 (August 22, 2014) (finding that the intervening events made it impossible for the agency to meet with the complainant after the complainant was charged with lewd conduct and barred from the postal facility); Complainant v. Department of the Air Force, EEOC Appeal No. 120070064 (June 26, 2008) (affirming the agency’s determination that its failure to return the complainant to the swing shift was due to the complainant’s actions). In the instant case, therefore, we agree with the Agency that the intervening events made it difficult for the Agency to leave Complainant assigned to the Hackensack Office, after Complainant was accused of engaging in inappropriate conduct and comments. It is also clear that Complainant bears some responsibility for the Agency not providing him with the IDP and detail opportunity. The detail opportunity was contingent on Complainant’s successful completion of the IDP. Complainant had to initiate the IDP, and successfully complete the IDP, before the Agency was obligated to provide a 120-day detail. For these reasons, we find that the Agency properly determined that Complainant failed to show that the Agency breached the terms of the Agreement. 2019000447 4 Finally, to the extent that Complainant wishes to raise new claims of discrimination, he should contact an EEO counselor to pursue the EEO process. CONCLUSION Accordingly, we AFFIRM the Agency’s Decision. 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 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). 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). 2019000447 5 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 April 26, 2019 Date Copy with citationCopy as parenthetical citation