U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Edwardo V.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120172030 Agency No. 07-63285-02950 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final decision (FAD) by the Agency dated April 24, 2017, 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 a Management Analyst position at the Agency's Operational Support Directorate, Polygraph Department in Washington, D.C. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On May 21, 2009, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that: (6) Effective August 6, 2009, Complainant will be reassigned from his criminal investigator, Series 1811 position to a Management Analyst position, Series 343, (Pay Schedule YA-2, Pay Band 02) in the NCIS Headquarters, Operational Support Directorate, Polygraph Department, in Washington, D.C. A copy of the position description for the Management Analyst position to which he will be reassigned is attached hereto and incorporated by reference as Exhibit A. By letter to the Agency dated March 20, 2017, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Complainant alleged that since the implementation of the agreement, the Agency changed his reporting structure. Further, he asserted he was going to be reassigned to work under the Field Office Support Officer who is in the Agency's Global Operations Office. Complainant believed that the reassignment was in breach of the agreement. In its April 24, 2017 FAD, the Agency concluded that it had complied with the settlement agreement. The Agency noted that the agreement did not specify Complainant's reporting structure. Further, the Agency asserted it complied with the requirements of the agreement in 2009 when it reassigned him to the referenced Management Analyst position. The Agency noted that the agreement did not provide a timeframe for this assignment and it was not expected that Complainant would remain in the position ad infinitum. This appeal followed. On appeal, Complainant indicated that he believed that his assignment to the Management Analyst position made pursuant to the agreement would not expire during the remainder of his employment with the Agency. Therefore, he believed his reassignment was a violation of the settlement agreement and he did not understand why the Agency could no longer provide him with the position agreed upon by the parties. In response, the Agency indicated that it had provided Complainant with the position in question in 2009. However, since the execution of the settlement agreement, the Agency indicated that the office has doubled in size and now has the status of a field office. Therefore, the Polygraph Service Field Office is now headed by a Special Agent-in-Charge. In March 2017, the Agency decided to make some additional changes to the organizational structure of the office. The Special Agent-in-Charge averred that Complainant's position was considered administrative in nature and all administrative personnel in the Office was realigned under Field Office Support Officer. Therefore, the Agency asserted that had complied with the settlement agreement and his reassignment was not a breach of that 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 (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, it is undisputed that Complainant was provided with the position agreed upon by the parties in the settlement agreement at issue in 2009. In 2017, Complainant was informed that he would be reassigned from that position. Complainant believed that this violated the agreement because he thought he would remain in the position for the remainder of his employment with the Agency. The Commission has held that a settlement agreement that places a complainant into a specific position, without defining the length of service or other elements of the employment relationship, will not be interpreted to require the agency to employ the complainant in the identical job specified forever. Schlecht v. Dep't of Defense, EEOC Appeal No. 01A30918 (Mar. 26, 2003) (the agency agreed to change the complainant's work schedule from part to full time. After placing the complainant in a full-time position where he remained for about two years and four months, the agency eliminated his full-time position via a Reduction-In-Force and offered him a part-time position. This was not a breach of the settlement agreement). Applying Schlecht, we find that the Agency has not breached the settlement agreement. The Agency's final decision finding no breach of the Settlement Agreement is AFFIRMED. 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 (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 January 4, 2018 __________________ 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 0120172030 2 0120172030