0120113635
11-21-2012
Michael Cornelius, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Michael Cornelius,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120113635
Agency No. ARJACKSON10OCT04505
DECISION
Complainant filed an appeal with this Commission from a Final Decision by the Agency dated September 1, 2011, finding that it was in compliance with the terms of the settlement agreement into which the parties entered. For the following reasons, the Commission AFFIRMS the Agency's Final Decision finding that no breach of the identified settlement agreement occurred.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Worker at the Agency's Child and Youth Service Center facility in Fort Jackson, South Carolina. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On June 24, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The Settlement Agreement provided, in pertinent part, that:
3. [The Agency] will:
a. Allow [C]omplainant to take a break (of no more than 15 minutes) after standing or walking continuously for thirty minutes. [The Agency] will re-evaluate allowing Complainant to take this break no later than 40 days after this agreement is signed by the Parties or after [C]omplainant has knee surgery, whichever comes first. Upon re-evaluation, [the Agency] will decide whether to allow [C]omplainant to continue to have these breaks;
b. Designate a cart to be used only for food, e.g., transport. Complainant will use
this cart to avoid prolonged, i.e., at least 30 minutes, kneeling, squatting, and crawling. The necessity for this cart will also be re-evaluated as indicated in paragraph 3a above; and
c. Give [C]omplainant access to a computer for official duties and matters.
By letters to the Agency dated July 28, 2011 and August 2, 2011, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that he was subjected to harassment by his supervisor, S1, who presented to Complainant and insisted that Complainant sign a document entitled, "Task Listing For Facility Maintenance." Complainant also stated that the Agency breached the Settlement Agreement by failing to provide him with computer access for his official duties.
In its Final Decision, the Agency concluded that Complainant had been allowed the breaks in his work schedule described in the Settlement Agreement and that the breaks, after review by the Agency, had not changed, but continued to be provided to him; nor had Complainant had knee surgery requiring any change in his breaks. The Agency further found that the list of tasks given to him by S1 did not violate the terms of the Settlement Agreement nor cause Complainant to forego the breaks provided in the Agreement. The Agency also found that as of August 15, 2011, Complainant was provided with computer access for his official duties. The Agency found that it had complied or substantially complied with the terms of the Settlement Agreement Complainant alleged to have been violated. The Agency concluded that no breach of the Settlement Agreement occurred as alleged.
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).
In the instant case, we find the Agency properly concluded that no breach of the Settlement Agreement occurred as alleged. We find the evidence does not show that Complainant's breaks as provided in the Settlement Agreement were impacted by the list of duties that were provided to him by S1. Providing subordinates with instructions and descriptions of tasks falls well within the scope of supervisory duties and we find no evidence that the tasking provided to Complainant contemplated any change or elimination of the break allowances provided by the Settlement Agreement. We further find that the evidence indicates that Complainant was granted computer access within a reasonable time. We find the Agency substantially complied with the Settlement Agreement and that Complainant has not shown that breach of the Settlement Agreement occurred as alleged.
In his notice to the Agency of the violations of the Settlement Agreement, Complainant states that he was subjected to harassment in reprisal for his protected EEO activity. These matters were not encompassed by the Settlement Agreement and were subsequent to the execution of the Settlement Agreement. We note the Agency properly advised Complainant to seek EEO Counseling if he wished to file a new EEO complaint regarding the subsequent claims of harassment.
CONCLUSION
We therefore AFFIRM the Agency's Final Decision determining that no breach occurred of the June 24, 2011 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 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 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
November 21, 2012
__________________
Date
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0120113635
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113635