U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Avery R.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency. Appeal No. 0120170201 Agency No. ARCCAD13APR01243 DECISION Complainant timely appealed to this Commission from the Agency's August 26, 2016 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 At the time of events giving rise to this complaint, Complainant worked as an Electroplater (WG-09) in the Plating Shop at the Corpus Christi Army Depot in Corpus Christi, Texas. In April 2013, Complainant requested multiple times to switch from the second shift to the third shift, in order work on Chemical Maintenance Plater assignments ("CM") rather than production work. Although one of Complainant's coworkers on the third shift was willing to swap shifts, the Division Chief ("DC") and the Director kept denying his requests. Believing that the denials were motivated by unlawful discrimination (reprisal for prior EEO activity), Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On November 1, 2013, Complainant and the Agency entered into a settlement agreement ("the Agreement") to resolve the matter. The Agreement, in relevant part, provided that the Agency and Complainant agreed to the following: Provision 3 If by 1 November 2013 [named coworker] confirms, in writing to [DC], that he agrees to swap shifts with Complainant, then Complainant will be moved to the Plating Shop 3rd shift as an Electroplater WG-3711-09 (PD# AA08083, attached) effective the pay period beginning the date an SF-50 changing Complainant to an Electroplater WG-3711-09 (PD# AA08083) is officially posted. In accordance with the Agreement, the Agency transferred Complainant to an Electroplater position on the third shift on or around November 3, 2013. Complainant sought the third shift specifically because DC, also a party to the Agreement, informed him that the first and second shift employees would no longer do CM work full time, and some CM crews would be reassigned to production work only. Complainant alleges that DC expressly said that only the third shift employees would be assigned CM projects. The Agency acknowledges that DC announced this to all Electroplaters in October 2013, less than a month before Complainant entered into the Agreement. Complainant anticipated all or nearly all of his workload would be CM projects, However, the full time CM positions in shifts one and two were not disbanded, in accordance with the stated plan. Additionally, DC abolished the third shift full time CM work crew, so that Complainant was denied an opportunity to perform CM work full time, his intent when he entered the Agreement. Complainant alleges that once he realized that he would not perform primarily CM work as expected, he confronted DC multiple times, and each time, there would be a momentary change in assignments before Complainant was put back on production. Complainant further alleges that he was unable to switch back to the second shift for a full time CM position. In or around July 28, 2016, Complainant's coworker was granted a transfer to full time CM work on the second shift after Complainant was denied the same request. By letter to the Agency dated August 1, 2016, Complainant alleged that the Agency was in breach of the Agreement, and requested that the Agency specifically implement its terms. According to Complainant, he only entered into the Agreement because DC misled him about the availability of CM assignments. The Agency dismissed Complainant's breach claim for untimely filing, and, in the alternative, found that management fully complied with the terms of the Agreement. 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 (Dec. 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 (Aug. 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. United States Postal Serv., EEOC Request No. 05910787 (Dec. 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); Complainant v. United States Postal Serv., EEOC Appeal No. 0120140143 (Feb. 20, 2014). As a preliminary matter, we exercise our discretion to accept Complainant's breach allegation for review on the merits regardless of timelines. Contrary to the Plain Meaning Rule, Complainant's arguments ask us to interpret the intent of the parties based on information outside the language of the Agreement. We find that the Agreement lacks the necessary ambiguity to allow this. A plain meaning interpretation of Provision 3 of the Agreement does not reflect Complainant's stated purpose for entering the Agreement detailed in his appeal. Specifically, there is no mention of CM responsibilities in the Agreement. Instead, the Agreement expressly provides for a swap in shifts. The Agency provided sufficient evidence that it complied with the Agreement in the form of official HR paperwork detailing the transfer dated November 3, 2013. To the extent that Complainant interpreted the Agreement as mandating that the Agency place him in a CM role, or allow him to transfer in order to fill a CM position, such interpretation should have been reduced to writing as part of the Agreement. In the absence of writing, it cannot be enforced. See Nakedia D. v. Dep't of the Army, EEOC Appeal No. 2010161782 (Oct. 11, 2016) citing Jenkens-Nye v. General Serv. Admin., EEOC Appeal No. 019851903 (Mar. 4,1987); see also Carter v. Dep't of the Army, EEOC Appeal No. 01985009 (Jul. 2, 1999). Therefore, Complainant cannot establish breach as a result of the Agency's failure to place him in a position with full time CM work or allow him to transfer to the second shift in order to work on CM full time. Finally, a fair and thorough reading of the record indicates that Complainant alleges additional claims of retaliation and discrimination constitute breach of settlement. For instance, Complainant's allegations that the Agency intentionally removed the CM work from the third shift as retaliation for the instant complaint, and refused to allow him to transfer to an open position in the second shift reference allegedly discriminatory actions that occurred after the Agreement was executed. Under 29 C.F.R. §1614.504(c) such an allegation must be treated as a separate non-breach complaint. Therefore, if complainant intended to raise a claim of retaliation, complainant should contact an EEO Counselor. The Commission does not address whether such contact would be timely. CONCLUSION Accordingly, the Agency's finding of no breach of the settlement agreement is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 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. The requests 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 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 (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 March 7, 2017 __________________ 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 0120170201 5 0120170201 6 012017020