0120122422
10-23-2012
Arach J. Wilson, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.
Arach J. Wilson,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Animal and Plant Health Inspection Services),
Agency.
Appeal No. 0120122422
Agency No. APHIS-2009-00479
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated April 19, 2012, finding that it was in compliance with the terms of an August 9, 2010 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On August 9, 2010, Complainant and the Agency entered into a settlement agreement to resolve a matter that was pursued through the EEO complaint process. The settlement agreement provided, in pertinent part, that:
A. In consideration of Complainant's consent to the terms of this Agreement, the Agency agrees to:
1. To pay Complainant a lump sum of seventy thousand dollars ($70,000.00) for any and all pecuniary, non-pecuniary, compensatory damages, and other damages of any type, arising out of or regarding Complainant's employment with the Agency through the effective date of this Agreement, except for the [named class action complaint] (complaint numbers FS-2008-01004 & FS-2008-00164) and its subsequent appeals. Within fifteen (15) calendar days from the effective date of this Agreement, the Agency will submit documentation to the National Finance Center required to effect the payment. This lump sum is taxable and the Agency will issue a 1099 on this payment. Nothing in this Agreement shall affect Complainant's responsibility with compliance with federal, state, and local tax filing requirements. Complainant shall be solely responsible for any tax consequence arising from this Agreement. Any disputes over taxes are between the Internal Revenue Service and the Complainant, and not the Agency. This lump-sum payment will be made electronically to Complainant to the account to which his salary is electronically transferred.
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C. The Parties agree:
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4. That the terms of this Agreement may not be amended, modified, or waived unless the amendment, modification, or waiver is set forth in a written instrument signed by both parties.1
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By letter to the Agency dated February 27, 2012, Complainant alleged breach. Specifically, Complainant alleged that the EEO-Civil Rights Complaints Manager (CM) changed the Formal Individual EEO-CR Complaint number of APHIS Agency Case 990224, originally filed on January 4, 1999, to APHIS-1998-01422 without notifying him or his representative.
Further, Complainant stated "the deliberate act by [CM] strongly violates the spirit and intent of applicable Federal EEO-CR laws especially in light of the fact that we had specific language in my settlement agreement for APHIS Agency Case 2009-00479 that prohibited any action by USDA in this settlement agreement that prevents the settlement of Formal Individual EEO-CR Complaint 990224 which was contained in the proposed but uncertified and uninvestigated Forest Service Agency Cases 2008-00164, and Individual Forest Service EEO-CR Case 2008-01004 both filed on July 1, 2008."
In its April 19, 2012 final decision, the Agency found no breach. Specifically, the Agency determined that Complainant failed to provide sufficient evidence showing that Agency management breached the instant agreement. The Agency noted that the change in Complainant's case numbers was the result of an Agency-wide data management shift that took place prior to CM's hiring. The Agency further determined that Complainant did not provide any evidence indicating the change was an act of bad faith instead of a mere logistical alteration.
The Agency further noted that on November 17, 2009, Agency management notified Complainant and his representative of the change in his case number detailed in the Report of Investigation (ROI). The Agency noted that because Complainant was made aware of the case number change, he was beyond the 30-day time limitation for alleging noncompliance of the instant agreement.
Moreover, the Agency noted that per provision A.1. of the agreement, Complainant waived any grievances concerning APHIS-2009-00479 after signing the agreement which became effective August 9, 2010. The Agency determined that the agreement itself clearly made reference to the new complaint number, and that any objections to its alteration should have been discussed during negotiations by Complainant and/or his representative prior to settlement.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency erred finding no breach. Complainant further requests that the Commission find the Agency in breach of the instant settlement agreement and "that they be sanctioned and directed to change my original EEO-CR case back to APHIS 1999-00224 as well as direct them to enter into immediate settlement ADR/Mediation talks to finally settle this almost 13 yr. old African-American Abeyance Disparate Treatment Case. The fact that the Agency tried to fraudulently deceive & trick me via their typical 'shell game' of switching case numbers from settling APHIS 990224 as requested not only in my signed settlement agreement of 8/9/10; but in numerous requests to USDA dating back to 2001; would grossly violate the spirit and intent of most Federal EEO-CR laws for African-Americans based on race even in 2012 with a sitting African-American President [named United States President]."
ANALYSIS AND FINDINGS
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).
Upon review of the record, the Commission finds that the Agency's determination of no breach of the instant agreement was proper. The record contains a copy of the Chief, Compliance Division (C1)'s memorandum dated March 8, 2012 in response to Complainant's breach allegations. Therein, C1 stated that the instant agreement executed on August 9, 2010 resolved the following complaints: MSCG-10-071; MSCG-10-91; APHIS-1998-01422; APHIS-2003-01281; APHIS-2003-01520; APHIS-2003-01535; APHIS-2007-00158; APHIS-2009-00479; and APHIS-2010-00526 "as well as all amendments, claims grievances, appeals, civil actions and class complaints, formal or informal, with the exception of [named class action complaint] (complaint numbers FS-2008-01004 & FS-2008-00164) [emphasis in its original]."
With respect to Complainant's allegation that CM changed APHIS Agency case 990224 to APHIS-1998-01422 without notifying him or his representative, C1 stated that it "is both inaccurate and irrelevant." Specifically, C1 stated that APHIS 990224 was "the pre-iComplaints number that later became APHIS-1998-01422. This change was made by the Department when iComplaints data tracking software was first implemented in USDA, which was long before [CM] joined the APHIS Civil Rights staff in 2009."
C1 stated that Complainant was aware of the change and was placed on notice that APHIS 990224 and APHIS-1998-01422 referred to the same complaint. Specifically, C1 stated that the ROI for APHIS-2009-00479 was sent to both Complainant and his representative on November 17, 2009, which "clearly identified Complainant's prior APHIS employment complaint cases, both open and closed...Complainant received this ROI approximately nine months before signing the August 9, 2010 Settlement Agreement and had ample time to review it."
Moreover, C1 stated that the plain language of the instant agreement "makes it clear that the agreement waived any and all claims except the [named class action complaint]. Thus, even if the complaint numbers were switched or incorrect, all claims except the [named class action complaint] were waived."
The record also contains a copy of C1's memorandum dated December 13, 2010, in response to Complainant's breach allegations. Therein, C1 stated that the Agency complied with all of the provisions of the instant agreement. In support of her assertions, C1 provided documentation indicating that the Agency complied with all of the provisions.
As such, the Commission points to the plain language rule as discussed above in finding that Complainant failed to establish that the Agency breached the instant agreement between the parties. Accordingly, after careful review of the entire record, and for the reasons set forth above, we find that the Agency has complied with the referenced provisions of the settlement agreement. We AFFIRM its decision finding no breach of the August 9, 2010 settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 9-18 (November 9, 1999). 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 (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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 23, 2012
__________________
Date
1 The settlement agreement also provides for the Agency to provide racial sensitivity training to National Veterinary Services Laboratories employees in Ames, Iowa and Plum Island, New York; to conduct a facilitated session with the Animal and Plant Health Inspection Service (APHIS) Collaborative Resolution and Team to assist in rebuilding Complainant's relationship with two named physicians; to assure that the APHIS Administrator send an apology letter to Complainant; and to allow Complainant attend the Blacks in Government National Training Conference in August 2010 and the United States Animal Health Association conference in November 2010. These provisions are not at issue in the instant case.
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0120122422
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122422