EEOC Appeal 2020000215

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shayne K.,1
Complainant,
v.
Chad F. Wolf,
Acting Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 2020000215
Agency No. HS-CBP-24601-2015
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final decision (Decision) by the Agency dated September 27, 2019, 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 Customs and Border
Protection Officer, GS-1895-12, at the Agency’s Los Angeles International Airport facility in Los
Angeles, California.
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an
Agency EEO Counselor to initiate the EEO complaint process. On November 11, 2017,
Complainant and the Agency entered into an initial settlement agreement to resolve the matter. On
January 8, 2018, the parties amended the initial settlement agreement (Agreement). This
Agreement provided, in pertinent part, that:
(3) The Agency agrees that Complainant will continue in his current shift and
position at the Los Angeles International Airport (LAX) Cargo building
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.

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while there is ongoing construction in or around LAX passenger terminals.
This assignment will last a duration of two years from the date of full
execution of this agreement. . .After the two years, the Agency may
reexamine Complainant's assignment, on a yearly basis to determine
whether the conditions for continuing the assignment (construction in or
around LAX passenger terminals and asthma) exist. If those conditions
cease to exist, Complainant will remain in his current position until the
following Bid, Rotation and Placement (BRP) is implemented. Complainant
and the Agency further agree the assignment to the Cargo building is not a
permanent assignment, but is based on both conditions (asthma and
Construction at LAX passenger terminals) being present. The terms of this
Agreement do not affect Bid, Rotation and Placement rights or other terms
covered under Article 13 of the October 1, 2017, Collective Bargaining
Agreement (CSA).
By email to the Agency dated August 6, 2019, Complainant alleged that the Agency was in breach
of the settlement agreement and requested that the Agency specifically implement its terms.
Specifically, Complainant said that during an email exchange with the Chief of Operations, he was
informed that “You were placed in [Tactical Operations/Advanced Targeting Unit (ATU)] because
of the Agreement you have with the Agency as it states you needed to be assigned to a location in
the LAX Cargo Building. You did not have seniority to be placed in ATU based on your bid
submission.” Complainant argued that this violated that portion of clause 3 of the Agreement that
stated, “The terms of this Agreement do not affect Bid, Rotation and Placement rights or other
terms covered under Article 13 of the October 1, 2017, Collective Bargaining Agreement (CSA).”
In its September 27, 2019 FAD, the Agency concluded there was no breach of the Agreement. The
Agency found that management initially incorrectly notified Complainant that he would have to
bid for FY 2020, but subsequently clarified that, if the conditions for continuing the assignment
ceased to exist, Complainant would still remain in his position at ATU until at least January 8,
2020, and indeed would continue in that position until the next bid cycle.
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).

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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 Complainant has not shown that the Agency breached the Agreement.
We note that, with regard to the August 2, 2019 email Complainant received from the Chief Officer
of Operations – Global Entry notifying him that his placement at ATU was pursuant to the
Agreement and not pursuant to his Bid, Rotation, and Placement (BRP) rights, that fact does not
amount to a breach of the Agreement and Complainant has not successfully explained how it does.
Indeed, in his email alleging breach, Complainant further stated “if I am removed from ATU with
both conditions referenced in the Agreement currently present, then the Agency is now knowingly
violating another portion within Paragraph 3.” We note, however, that Complainant has not shown
that, to date, he has been removed from ATU “with both conditions . . . currently present.” As
such, Complainant has not shown the Agency breached the Agreement.
On appeal, Complainant argues:
Per the Settlement Agreement, my bid should have been presented and I should
have been allowed to bid for a position that was available when my name and
seniority date came forward. That assignment slot should have been held for me
while I remained in the position agreed upon within the Settlement Agreement until
the duration of that position's bid cycle or the terms of the Agreement were no
longer in effect, which ever came first. . . .
Due to the Agency's violation of the Settlement Agreement I am currently officially
in limbo at the moment and at the mercy of the Agency's will, making me
vulnerable to any reprisal the Agency may seem fit and/or necessary. My only
protection from such reprisal is a portion of the Settlement Agreement in which the
Agency continues to interpret as having an expiration date of January 08, 2020.
However, even with that I fear that the Agency will once again violate the
Settlement Agreement as they have shown to do in many instances prior to include
but not limited violating the CBA which is agreed upon by the Agency and the
Nation Treasury Employee Union (NTEU) and in this instance which occurred
within the very first year of the Settlement Agreement's implementation.
We note, however, that Complainant has not shown he was not allowed to bid for any position
pursuant to the Agreement. If indeed Complainant was prevented from bidding for a position, that
could constitute a violation of the CBA and Complainant would need to seek a remedy through
the Union. His allegation of breach of the Agreement, however, would only apply if he was
prevented from bidding pursuant to the Agreement, and Complainant has not shown that such an
event occurred. We further note that contrary to Complainant’s argument, the Agreement does not
state that assignment slots should be held for him while he remains at ATU.

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As for Complainant’s arguments that he is “in limbo” or that the Agency might breach the
Agreement in the future, such concerns are speculative and do not constitute a valid current claim
of breach. Finally, Complainant alleges that “The Agency breached the Settlement Agreement
when they used the terms of the Settlement Agreement to impair Complainant's rights for bidding
on positions under the CBA” but Complainant has not shown how his bidding rights were in any
way impaired.
CONCLUSION
The Decision 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).

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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
May 21, 2020
Date