0120120804
11-13-2012
Vincent Wilson, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Vincent Wilson,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120120804
Agency No. 096247203364
DECISION
Complainant filed an appeal with this Commission from a final decision (FAD) by the Agency dated February 17, 2011, finding that it was in breach 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 complaint, Complainant worked as a Rigger at the Agency's facility in San Diego, California.
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On September 3, 2010, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that the Agency, in consideration of the mutual promises contained herein, agrees to:
a. give Complainant priority consideration for the next Rigger Leader, WL-521Q-IO position that is not encumbered by a priority placement action. Water experience will not be a factor in the selection.
b. ensure that Complainant receives "on water" experience commencing no later than October 1, 2010 and have sufficient qualifying experience opportunities provided no later than December 31, 2010.
c. initiate a cash settlement of $1,500.00 no later than September 10, 2010.
By letter to the Agency dated January 28, 2011, Complainant's former representative alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to provide Complainant with any qualifying experience as agreed to in provision (b). As such, Complainant's former representative requested that the complaint be reinstated from the point where processing ceased.
In its February 17, 2011 FAD, the Agency concluded that it had, in fact, breached the settlement agreement. Based on Complainant's former representative's letter, the Agency provided Complainant with a copy of the Report of Investigation and allowed for Complainant to request either an immediate final decision by the Agency or a hearing before an EEOC Administrative Judge. He requested a hearing.
On March 22, 2011, the EEOC's Los Angeles District Office docketed Complainant's request for a hearing before an EEOC Administrative Judge (AJ) regarding his complaint of discrimination. While the matter was before the AJ, the Agency representative indicated that Complainant had been paid $1,500 pursuant to provision (c) of the settlement agreement, and should be required to repay the Agency the money paid to him pursuant to the settlement agreement in order to proceed with the adjudication of his complaint.
On July 21, 2011, the AJ issued an order to show cause indicating that the complaint would be dismissed unless, on or before August 5, 2011, the parties notify the AJ that the matter of the $1,500 payment had been resolved.
On August 2, 2011, Complainant obtained a cashier's check in the amount of $1,500. On August 3, 2011, Complainant's new representative e-mailed the Agency's representative informing him that Complainant had placed the cashier's check in the mail. The Agency's representative stated he would await the check.
According to Complainant, the Agency never informed the AJ of the cashier's check. On August 20, 2011, the AJ dismissed the complaint noting that the parties have not resolved the dispute regarding the return of $1,500. The AJ remanded the matter back to the Agency for issuance of a final decision within 40 calendar days.
When the Agency failed to issue a final decision, Complainant filed the instant appeal. Complainant requests on appeal that the Commission remand the matter back for a hearing.
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, the parties agree that the settlement agreement was breached. The Commission need not revisit this issue. Further, on appeal Complainant has provided evidence that by August 3, 2011, he had contacted the Agency to inform the Agency representative that he had mailed a cashier's check in the amount of $1,500.
When a complainant elects to return to the status quo ante and he returns any monies or benefits owing to the Agency, as specified above, the Agency shall resume processing the complaint from the point processing ceased pursuant to 29 C.F.R. � 1614.108 et seq. Based on the evidence before the Commission, Complainant timely returned the parties to the status quo ante. Unfortunately, the Agency failed to inform the AJ of such, and Complainant's complaint was dismissed in error. Therefore, we reinstitute the complaint and remand it for resumed processing at the hearing stage.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's determination that the settlement agreement was breached and REMAND the complaint from the point where processing ceased.
ORDER
The Agency is ordered to resume processing Complainant's underlying complaint within 15 calendar days of the date this decision becomes final. To do so, the Agency must contact the EEOC's Los Angeles District Office in writing within the 15 days and request a hearing with an EEOC Administrative Judge on the underlying complaint that was formerly the subject of the September 2010 settlement agreement. Further, it must provide Complainant and the Compliance Officer with a copy of its letter to the EEOC's Los Angeles District Office.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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), 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 13, 2012
__________________
Date
2
0120120804
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120804