0120142189
10-02-2014
Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Animal and Plant Health Inspection Services),
Agency.
Appeal No. 0120142189
Agency No. APHIS201300819
DECISION
Complainant filed a timely appeal with this Commission from a letter of determination by the Agency dated May 1, 2014, finding that it was in compliance with the terms of a September 19, 2013 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 September 19, 2013, Complainant and the Agency entered into a settlement agreement to resolve a matter that had been pursued through the EEO complaint process. The September 19, 2013 settlement agreement provided, in pertinent part, the following Agency obligation:
Paragraph A.6
To reassign Complainant to the immediate supervision of [the Complainant's Supervisor or S1], Chief, Environmental and Risk Analysis Services for as long as Complainant remains in his current position with the Environmental Risk Analysis Services Unit in [Policy Program and Development or PPD]. Complainant's duties under [S1] will be commensurate with his position and may or may not include [environmental justice or EJ] duties. If [S1] is out of the office, on detail, or leaves the position, Complainant will report to [S1]'s assign or successor. This change in direct supervision will occur within ten (10) calendar days after the effective date of this Agreement. This provision does not restrict the Agency from any future reorganization or realignment of PPD. Complainant's ongoing placement in this position will be subject to all laws, regulations, and policies of general applicability under the direction of [the Agency].
By letter to the Agency dated October 22, 2013, Complainant alleged breach, and requested that the Agency specifically implement and enforce the terms of the subject agreement. Specifically, Complainant alleged that the Agency removed certain duties from him by email on September 27, 2013. Complainant alleged that these duties were then reassigned to another staff member, EN. Complainant alleged that he was stripped of the following duties:
1. Point of Contact (POC) Consultant for the Environmental and Risk Analysis Services (ERAS) for the National Historic Preservation Act (NHPA)/Section 106
2. POC Consultant for ERAS for Tribal Matters
3. POC Consultant for ERAS for Environmental Justice
Complainant asserted that these duties were stripped from him by S1 and that the duties were not replaced by any substantive duties or duties commensurate with his position. Further, Complainant alleged that the duties taken consisted of the most prominent, prestigious and desirable portions of his duties. Complainant also alleges that because the Tribal and NHPA/Section 106 duties were not expressly mentioned in A.6, that his later removal as the POC is material. Complainant alleged that the Agency's actions left him substantially bereft of work as the duties comprised a significant portion of his workload.
In its May 1, 2014 letter of determination, the Agency found no breach of Paragraph A.6 of the settlement agreement. The Agency found that the removal of certain duties along with the assignment of other work assignments were commensurate with the duties and responsibilities identified in his GS-13 position. The Agency noted that the settlement agreement did not specifically identify duties as "prominent" or "prestigious," and did not obligate the Agency to identify and assign such duties to Complainant. On September 27, 2013, by email, S1 directed Complainant to prioritize tasks including a training manual for a cattle-fever tick biological opinion; retain subject matter expertise on NHPA/Section 106, environmental justice, and tribal matters; engage in policy and program development for the Native American working group; and perform various other activities as assigned. The same email stated that Complainant would no longer be working on certain assignments, such as the ones Complainant discussed in his letter to the Agency on October 22, 2013, referenced above.
The instant appeal followed.
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).
The Agency has established that it is in substantial compliance with the terms of the settlement agreement. Here, the Agency has removed some duties; however it has also directed Complainant to other duties which the Agency deems meaningful, important and critical to the Agency's mission. We acknowledge that when an employee is assigned work that includes menial or administrative tasks that are out of proportion to the position, a breach of a settlement agreement may occur. See generally Warren v. Department of the Army, EEOC Request No. 01A04898 (May 7, 2003) (assignments that are not meaningful are not "commensurate" with the employee's experience, such as ordering office supplies, at a specialist's level). However, in the instant case, the Agency noted that while Complainant no longer serves as the Point of Contact (POC) on NHPA/Section 106, Environmental Justice, and Tribal matters, Complainant still retains subject matter expertise and training duties in those areas. We find that Complainant's revised duties in Project Management, Policy Development, and Environmental Compliance, including his subject matter expertise in NHPA/Section 106, Environmental Justice, and Tribal matters, are commensurate with his GS-13 position.
Accordingly, the Agency's finding of no breach of the September 13, 2013 settlement agreement is AFFIRMED.
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 2, 2014
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
__________________
Date
______________________________
Compliance and Control Division
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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