U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Virgilio C,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture, Agency. Appeal No. 0120162156 Agency No. CRSD-2011-01107 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ) June 16, 2016 order or dismissal of Complainant's request for a hearing regarding a settlement agreement dated March 22, 2013. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-12 Regional Director in the Agency's Hispanic Serving Institutions National Program, Higher Education Institutions Program (HEIP, Office of Advocacy and Outreach (OAO). Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. In a formal complaint, Complainant alleged that the Agency subjected him to national origin/race discrimination (Mexican/Hispanic) when it paid him at the GS-12 level, but performed work at the GS-13 level. On March 22, 2013, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (A1) The Agency will promote the Employee to the position of Hispanic Serving Institutions Education Advisor at the GS-1701-13 step three (3) with an effective date of April 21, 2013. In addition all necessary paperwork will be prepared and processed no later than 30 days from the signature date of the agreement. (A2) The Employee will be given a time-off award of 80 hours to be used by September 30, 2014. (A3) To pay Complainant a lump sum of Ten Thousand Dollars ($10,000.00), in the form of an electronic transfer to Complainant which is inclusive of any and all pecuniary, non-pecuniary, attorney fees, 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. (A4) Within thirty (30) calendar days from the effective date of this Agreement, the Agency will submit documentation to the National Finance Center to effect the payment of the lump-sum amount of Ten Thousand Dollars ($10,000.00) to Complainant. The Agency makes no representations regarding any federal, state, or local tax liability which may be incurred by Complainant as a result of this payment. Taxes will not be taken from the amount paid to Complainant, but the Agency will report this amount to the Internal Revenue Service. 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. *** (B5) SEVERABILITY: In the event that any term or condition of this Agreement is determined by a court of competent jurisdiction (including the EEOC, and/or the MSPB) to be unenforceable as a matter of law, then such term or condition shall be severed from this Agreement and all the remaining terms and conditions shall remain in full force and effect. By letter to the Agency's Office of Compliance, Policy, Training, and Cultural Transformation (OCPTCT) dated June 11, 2013, Complainant alleged that "none of the specific terms and conditions of the signed Settlement Agreement on 03/22/2013 have been implemented by [the Agency]." Complainant further alleged that he had not received written notice explaining the status of the specific actions taken to implement the settlement agreement. Additionally, Complainant requested specific enforcement of the agreement as the remedy for the alleged breach. In a letter to Complainant dated June 18, 2013, the Agency stated that it was unable to implement provision (A1) of the settlement agreement because the provision is contrary to law. The Agency reported that the position of Hispanic Serving Institutions Education Advisor, GS-1701, is a career ladder position that ends at the GS-12 level; therefore, the Agency is prohibited by law from promoting Complainant to the GS-13 level. The Agency further informed Complainant that provision (A1) of the agreement was rescinded, but as provided by provision B5's severability clause, the remainder of the agreement remained effective. The Agency also stated that if Complainant wanted to allege breach of the agreement, he should provide written notification of the allegation to the Chief, Compliance Division, OCPTCT within 30 days of awareness of the noncompliance. In a letter dated September 26, 2013, Complainant submitted a request to the Commission's Washington Field Office for a hearing with an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ) regarding Agency No. CRSD-2011-01107 and a settlement agreement. On July 30, 2014, the Agency filed a motion to dismiss with the AJ. The Agency maintained that Complainant's hearing request should be dismissed because the proper procedure for raising breach allegations is by filing an appeal with the EEOC's Office of Federal Operations (OFO), not with an AJ. On June 16, 2016, the AJ issued an Order dismissing Complainant's hearing request pursuant to the March 22, 2013 settlement agreement. Complainant appealed the matter to the Commission on June 17, 2016. The Agency did not issue a final order within forty days. Thus, pursuant to 29 C.F.R. § 1614.109(i), the AJ's decision became the final action of the agency. CONTENTIONS ON APPEAL On appeal, Complainant maintains that the issues raised in Agency No. CRSD-2011-01107 were not resolved by the settlement agreement. Complainant further contends that he would like to be compensated for lost within-grade increases (WGIs) from 2010 to 2014, lost wages for not being paid equally at GS-13 from 2010 to 2014, and 160 hours of time-off attributable to emotional distress because of the prolonged EEO process. The Agency requests that we affirm the AJ's dismissal of Complainant's breach claim. 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). As an initial matter, we note that EEO Regulations provide that if a complainant believes that an agency has failed to comply with the terms of a settlement agreement, he must notify the EEO Director in writing of the alleged noncompliance within 30 days of when he knew or should have known of the noncompliance. 29 C.F.R. § 1614.504(a). In this case, Complainant initially raised his breach claim with the Agency's Chief of the Office of Compliance, Policy, Training, and Cultural Transformation,2 and subsequently, with the Commission's Washington Field Office, where he sought a hearing with an AJ. We find that the AJ appropriately dismissed Complainant's breach claim because EEO Regulations do not provide AJs with jurisdiction to review settlement breach claims. See Lunsford v. U.S. Postal Serv., EEOC Appeal No. 01A52201 (June 21, 2006) (AJ appropriately determined that he did not have jurisdiction over the issue of settlement breach). However, the AJ should have remanded the matter to the Agency for it to respond to Complainant's breach allegations. Nevertheless, in the interest of administrative efficiency, we will herein address the Agency's compliance with the agreement. Regarding the issue of whether the Agency complied with terms of the settlement agreement, we note that the Agency contends that it cannot provide Complainant with the promotion promised in the agreement because the Hispanic Service Institutions Education Advisor position identified in the agreement is a career ladder position that ends at the GS-12 level. The Agency cites 5 C.F.R. § 335.103 and its Department Personnel Manual as requiring the use of the competitive process for promotions beyond the range of grades in the career ladder. However, these authorities broadly address promotions in general, not the specific promotion at issue in this case. We find that there is simply no evidence in the record that proves that regulations prevent the Agency from promoting Complainant to the promised Hispanic Service Institutions Education Advisor position at the GS-13 level. Moreover, we note that when an Agency agrees to do something in a settlement agreement, the Commission presumes that it can do so, except in extraordinary circumstances. In this case, at the time of the execution of the agreement, the Agency should have known whether it could promote Complainant to the GS-13 level at the time it entered into the agreement. Further, Complainant reasonably relied upon the Agency's assertion that it would promote him when entering into the agreement. In these circumstances, we conclude that it would be contrary to fundamental fairness to invalidate the promotion provision of the agreement. As such, we find that the Agency must promote Complainant to the GS-13 level, effective April 21, 2013.3 Additionally, Complainant broadly maintains that none of the terms of the agreement have been implemented. Despite receiving notice of Complainant's breach claim, the Agency has not addressed its compliance with the agreement beyond the promotion provision. Moreover, the record does not contain any evidence that the Agency has provided Complainant with the promised 80-hour time off award or $10,000 payment. In the absence of any evidence from the Agency regarding its compliance, and Complainant's breach allegation, we are persuaded that the Agency has not provided Complainant with the promised time-off award and lump sum payment. Therefore, we find that the Agency has breached the terms of the settlement agreement. Complainant requests specific performance of the terms of the agreement, which we find is the appropriate remedy for the Agency's breach. CONCLUSION Accordingly, the Commission REMANDS this matter to the Agency to undertake further actions consistent with this decision and the ORDER set forth below. ORDER To the extent that it has not already done so, within one hundred and twenty (120) calendar days from the date this decision is issued, the Agency is ORDERED to take the following actions: 1. The Agency shall retroactively promote Complainant to the position of Hispanic Serving Institutions Education Advisor at the GS-1701-13, Step 3 level, effective April 21, 2013. Complainant shall receive back pay and benefits commensurate with this retroactive promotion, pursuant to 29 C.F.R. § 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. 2. The Agency shall provide Complainant with a time-off award of 80 hours to be used within 18 months after the date this decision is issued. 3. The Agency shall pay Complainant a lump sum of ten thousand dollars ($10,000), in the form of an electronic transfer to Complainant, which is inclusive of all pecuniary, non-pecuniary, attorney's fees compensatory damages, and other types of damages. Taxes will not be taken from the amount paid to Complainant, but the Agency will report this amount to the Internal Revenue Service (IRS). The lump sum payment will be made electronically to Complainant's account. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations 03/30/18 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 We note that the settlement agreement advised Complainant to file breach allegations with the Chief of the OCPTCT, instead of the EEO Director. 3 The record reveals that in May 2014, the Agency upgraded Complainant's position to the level of GS-13 career ladder, and Complainant was promoted to GS-13 at that time. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162156 7 0120162156