0120101729
08-24-2010
David J. Swanson, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
David J. Swanson,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120101729
Agency No. DON 07-66001-00243
DECISION
Complainant filed an appeal with this Commission on March 20, 2010 concerning his allegation that the Agency has not complied with some of its obligations set forth in the February 3, 2009 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.
ISSUES PRESENTED
(1) Whether the settlement agreement is void because Complainant was coerced; and
(2) Whether the Agency is in compliance with the terms of the settlement agreement.
BACKGROUND
The February 3, 2009 settlement agreement that is at issue here, provided, in pertinent part, that:
2. The Navy, in consideration of the mutual promises contained herein, agrees to:
a. Process and support a disability retirement application under Federal Civil Service statutes and regulations;
b. Provide [Complainant] with up to 16 hours of official time to process the disability retirement application;
c. Refrain from proposing an adverse action for any misconduct that occurred prior to the execution of this Agreement;
3. [Complainant], in consideration of the mutual promises contained herein, agrees to:
c. During the period the disability retirement application is pending, [Complainant] will show fully satisfactory attendance and performance.
d. Use his best efforts to process and support his disability retirement application.
4. [Complainant] clearly understands that the Office of Personnel Management (OPM) has the final authority to approve or deny a disability retirement application.
At the outset, we note that the Agency asserts that Complainant made no written breach allegation to it before filing the instant appeal. The Agency asserts that Complainant made allegations regarding breach of the settlement agreement in a phone conversation with the Equal Opportunity Complaints Manager on July 29, 2009, and in an email (after filing the instant appeal), on April 5, 2010. Complainant maintains that when he filed new EEO complaints in May and June 2009, he alleged that the Agency had not complied with the terms of the settlement agreement.
The Commission is unable to discern exactly when Complainant first alleged breach, and/or whether at that time, he presented this allegation to the EEO Director in writing within 30 days of when he knew (or should have known) of the alleged noncompliance, as required pursuant to 29 C.F.R. � 1614.504. Moreover, we note that the Agency does not appear to have issued a final determination concerning whether a breach of the agreement in fact occurred.
Nevertheless, given that both parties have fully addressed the matter of the Agency's compliance with the subject settlement agreement in significant detail, the Commission exercises its discretion to accept this appeal, and address the merits of Complainant's breach allegations.
CONTENTIONS ON APPEAL
Complainant asserts on appeal, that: he felt coerced into accepting the Agency's offer to resolve the dispute because the Agency was attempting to have him removed. With respect to his allegation of breach, Complainant maintains that management breached the settlement agreement, when, in June 2009, management continued their plans to remove him after agreeing not to, before securing his disability retirement, and he was subsequently removed.1 He also asserts that although he reported the breached settlement agreement to the Agency, nothing was ever done, such as reinstating him or getting his disability retirement. Complainant also contends that he has been subjected to additional acts of discrimination, retaliation and harassment.
In response, the Agency contends that it has complied with the terms of the settlement agreement, but that Complainant did not satisfy his own obligations under the agreement. The Agency denied that Complainant was coerced into entering into the agreement. The Agency also notes that other allegations of discrimination made by Complainant are either duplicates of claims that are currently under investigation within the EEO process, or were untimely brought to the attention of an EEO counselor.
ANALYSIS AND FINDINGS
Initially, we reiterate that the sole issues before the Commission are whether the settlement agreement, a) should be considered void due to coercion; or b) was breached by the Agency.
Coercion
Because the Commission favors the voluntary resolution of discrimination complaints, settlement agreements are not lightly set aside. However, the Commission will find the contract void if coercion, misrepresentation, misinterpretation, or a mistake occur during the formation of the contract, making assent to the agreement impossible. See Shuman v. Dep't of the Navy, EEOC Request No. 05900744 (July 20, 1990).
Complainant specifically explained his allegation of coercion in his April 5, 2010 email to the Equal Opportunity Complaints Manager as follows:
... management was candid about telling me they wanted me gone and with or without a settlement they were going to fire me. I felt intimidated and humiliated. All the problems over the last two years that lead us to this settlement meeting fell by the wayside. I was now negotiating to save my career and it became clear I could not trust them. I felt coerced and rushed to settle.
He further explains:
I did not have an attorney but the facilitator helped me and did an excellent job. But under those circumstances, I was still reeling about the news [that]...management was actively preparing to remove me. I lost the presence of mind I needed to ensure all the verbal agreements got into the written agreement. The 3 February 2009 settlement meeting was a painful ordeal. But, I thought having a settlement meant it was now safe for me to have a personal sense of security. I ended up signing the papers, settling, because I needed to keep my job.
The Commission has held that the party raising coercion or duress must show that there was an improper threat of sufficient gravity to induce assent to the document and that the assent was in fact induced by the threat. Such a threat may be expressed, implied or inferred from words or conduct, and must convey an intention to cause harm or loss. A Complainant's bare assertions will not justify a finding of coercion. Cannella v. Department of Veterans Affairs, EEOC Appeal No. 01995444 (December 5, 2000). We find, based on Complainant's description of the climate in which he entered the settlement agreement, that he was not subjected to coercion. In this regard, we do not find that management issued an improper threat to Complainant by discussing the consequences of his alleged lengthy history of AWOL and failure to follow leave procedures.
Accordingly, we decline to deem the settlement agreement void on the grounds that Complainant was coerced.
Breach of Settlement Agreement
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).
Complainant contends that because he was terminated before he was able to obtain disability retirement, the Agency did not comply with the settlement agreement. The Agency's position is that Complainant is the one who breached the settlement agreement in that he was required to use his best efforts to process and support a disability retirement application, and show fully satisfactorily attendance and performance during the period the disability retirement application was pending. The Agency asserts that he did not do this.
The Agency maintains that, in contrast, management acted in good faith and pursued its obligations set forth in the settlement agreement. The Agency states that it did the following in order to comply with term (1)(a) of the settlement agreement: on February 4, 2009, the Agency directed Complainant to contact the Navy Civilian Benefits Center so he would be assigned a benefits counselor who would assist him with the process of filing a disability retirement application. Complainant did so, and submitted some documentation, but was told by the benefits counselor he needed to submit medical documentation. The Agency full cooperated with the process to obtain a disability retirement for Complainant and submitted the supervisor's statement and position description it was required to provide.
After several months, Agency personnel met with Complainant on July 24, 2009 to discuss Complainant's progress with his disability retirement application. During this meeting, Complainant related that his acupuncturist believed he was on the way to being "cured" (specifically, his acupuncturist found he was showing signs that he was "sero-converting" and spontaneously being cured of his medical condition). Complainant requested that he have until October 2009 to submit the required medical documentation. Because the Agency was not convinced Complainant would actually submit the required documentation, his request for additional time was denied and he was instructed to submit whatever medical documentation he currently had directly to the navy benefits counselor. Further, at this meeting it was explained to Complainant that he had to submit whatever documentation he had obtained as of that day to the Navy benefits office by August 7, 2009.
The Agency maintains that although Complainant was aware of the requirement to complete his disability retirement application by submitting medical documentation, he did not do so. The Agency notes that Complainant sent an email to his supervisor on August 20, 2009 wherein he stated, "As I can't go any further with my disability retirement, it looks like I'll be here longer than I anticipated" and made repeated references to a "tried" and "attempted" settlement.
The Agency asserts that based upon months of delay in obtaining medical documentation attributable to Complainant, and Complainant's lack of willingness to pursue the disability retirement application, the Agency determined that Complainant had no intention of fulfilling his requirements under the settlement agreement. The Agency then took steps to remove him based on his lengthy history of AWOL and failure to follow leave procedures.
The Agency additionally notes that it complied with the other terms of the settlement by, among other things, providing Complainant in excess of 300 hours of official time to process his disability retirement application; refraining from proposing an adverse action for misconduct that occurred prior to the settlement agreement; restoring 57 hours of sick leave via a direct payment from DFAS; and, changing Complainant's 3-day suspension in March 2005 to a Letter of Caution. The Agency maintains that in the instant case, the Agency's obligation was to "Process and support a disability retirement application under Federal Civil Service statutes and regulations". Complainant has not shown that the Agency failed to do that.
Based on the record, the Commission finds that the Agency did not violate the settlement agreement. The reason Complainant did not receive disability retirement was not due to the fault of the Agency, but had to do instead with Complainant's acupuncturist declining to provide medical support for his disability retirement because of the fact that Complainant's condition appeared to be improving. As the settlement agreement itself acknowledges, whether Complainant actually obtained disability retirement was in the hands of the Office of Personnel Management, the final authority on these matters. The Agency was only required to "process and support a disability retirement application," and we are persuaded that it has satisfied this obligation.
CONCLUSION
The Commission finds that the Agency has complied with the settlement agreement.
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), at 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 (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 (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
____8/24/10______________
Date
1 Complainant filed a separate EEO complaint concerning the removal action itself.
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0120101729
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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