0120122519
10-17-2012
Isaac Garris, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Isaac Garris,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120122519
Agency No. 094523A02945
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated April 19, 2012, 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
Complainant is employed as a Safety Technician at the Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton, Washington.
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On December 9, 2009, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1) The Agency will cancel the five day suspension effective 6 April 2009 and pay corresponding backpay including interest. The cancellation action will be initiated within 30 calendar days from the effective date of this agreement.
By letter to the Agency dated March 27, 2012, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency reinstate his complaint. Specifically, Complainant alleged that the Agency issued him a letter of proposed suspension on February 6, 2012, which referenced the cancelled suspension. Complainant states he was assured that the failure to cancel the action was an oversight and that the suspension was rescinded. On March 5, 2012, the proposed suspension was reissued to Complainant and did not refer to the previous suspension. Complainant states he checked his official personnel file and that there were two SF-50 forms referencing the suspension in his file.1
In its April 19, 2012 FAD, the Agency concluded it was not in breach of the agreement. The Agency noted that the first suspension was cancelled and included emails indicating that the documents referencing the 2009 suspension had been removed from Complainant's records.
In his appeal, Complainant asks that his complaint be reinstated.
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).
In the instant case, we note that the record contains emails showing that in 2009 steps were taken, pursuant to the settlement agreement, to rescind the April 2009 suspension and provide Complainant with backpay. However, it is also clear that, despite this rescission, references to this suspension were not expunged from Complainant's personnel records and the April 2009 suspension was improperly referenced in the new February 2012 proposed suspension. To this extent, we find that the Agency did, in fact, breach the terms of the settlement agreement.
However, once the Agency was informed by Complainant in March 2012 that the April 2009 suspension, while rescinded, had not been expunged for the records, it took immediate action to make sure that the improper records were removed from his personnel files and rescind the 2012 proposed suspension that referenced the matter. As such, we now find that the Agency has now come into compliance with the agreement. While we recognize that Complainant has requested reinstatement of his underlying complaint as a remedy for the Agency's breach, we conclude that this would not be appropriate in these circumstances. If Complainant's 2009 complaint was reinstated, he would have to return to the status quo, meaning he would have to have the 2009 suspension placed back in his records and return all monies received. Therefore, specific performance of the terms of the agreement is a better remedy for the Agency's breach. As already noted, the record indicates that the Agency is now in compliance with the agreement.
Complainant is reminded that if he feels the most recent suspension was an act of reprisal, he may contact an EEO counselor to pursue the matter. The date he informed the Agency of the breach should be considered the date of his EEO counselor contact.
The Agency's final decision is MODIFIED to reflect that while breach did occur, the Agency is now in compliance with the relevant term of the 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 17, 2012
__________________
Date
1 Complainant does not allege he was not paid the backpay as set forth in the agreement.
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0120122519
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122519