Appeal No. 0120114180
02-07-2012
Eric Jennings, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Eric Jennings,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120114180
Agency No. 200400102011100569
DECISION
Complainant filed a timely appeal with this Commission after the Agency
failed to timely issue a decision regarding whether or not it was in
compliance with the terms of the settlement agreement into which the
parties entered. See 29 C.F.R. § 1614.405.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Health Systems Specialist at the Agency’s Health Administration
facility in Washington DC. Believing that the Agency subjected him to
unlawful discrimination, Complainant contacted an Agency EEO Counselor to
initiate the EEO complaint process. On March 5, 2011, Complainant and
the Agency entered into a settlement agreement to resolve the matter.
The settlement agreement provided, in pertinent part, that the Agency
would:
(1) Provide Complainant with an “Outstanding” performance
rating for the Rating Period October 1, 2009 to September 30, 2010,
and remove the current “Excellent” rating from his OPF; and adjust
his performance award payment to reflect the amount associated with the
new rating.
(2) Provide each employee under the supervision of [Complainant’s
supervisor (S)] at least one opportunity to attend training in each
rating period, subject to available appropriations or resources.
(3) Within 20 days from being provided a scorecard from Complainant
for measuring production on correspondence review, S shall review,
modify, and submit for approval the scorecard to her immediate superior:
provided Complainant shall provide such scorecard to S within 20 days
of the effective date of this Agreement.
(4) S, within 30 days of receipt, shall provide Complainant with a
full description of any customer complaints, concerns, or admonitions
regarding Complainant, provide him with an opportunity to respond to
them before considering any such complaints, concerns or admonitions in
connection with Complainant’s performance or conduct. S will track
and share performance metrics with Complainant and clearly identify
any negative item is [sic] identified, and provide Complainant full
opportunity to respond with supporting materials that will be considered
by S.
(5)1 S will establish tracking and reporting systems to monitor
equity of access to training resources, assignment of special projects,
and leave to ensure equality of access and opportunity across all Health
Systems Specialist staff within the Network Support Office.
By letter to the Agency dated July 7, 2011, 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 when he was asked to sign the changed performance evaluation
for 2009/2010, the document noted that the evaluation was being changed
pursuant to a settlement agreement. Complainant argued that such a
notification violated the Agreement’s confidentiality requirement.
In addition, Complainant argued that S did not comply with any of
the actions referred to in the Agreement, such as the requirement
that S “review, modify, and submit for approval the scorecard to her
immediate superior,” and the requirement that S “establish tracking
and reporting systems to monitor equity of access to training resources,
assignment of special projects, and leave.” After not receiving a
decision from the Agency on his claims of breach, Complainant, pursuant
to 29 C.F.R. § 1614.504(b), filed an appeal with the Commission on
August 30, 2011,
On September 14, 2011, the Agency issued a Decision noting that it
had complied with provision (1) and that Complainant had received an
“Outstanding” evaluation for the relevant appraisal period and
further, that the Agency had paid Complainant a performance award of
$2,000.00 for “superior performance.” The Agency further found that
provisions (2), (3), (4) and (5) were “too vague to enforce” and
lacked consideration as they did not provide Complainant with benefits
to which he was not already entitled as a Federal employee. The Agency
concluded that such provisions should be voided but that, since the Agency
had complied with provision (1), it was not in breach of the Agreement.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that while provisions (2), (3), (4), and
(5) may not have provided Complainant with benefits to which he was not
already entitled, in reality the Agency was not providing such benefits
and hence the Agreement did, in principle, provide previously unavailable
benefits. As such, Complainant argues, the relevant provisions should
not be voided. In addition Complainant argues that the Agency failed
to timely respond to the provisions of the Agreement as well as to his
allegations of breach and so his complaint should be reinstated.
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).
The Commission has held that a settlement agreement that is not
based upon adequate consideration is unenforceable. See Collins
v. U.S. Postal Serv., EEOC Request No. 05900082 (April 26, 1990).
The Agency maintains that provisions (3) through (5) lack consideration
because they provide Complainant with benefits to which he is already
entitled as a Federal employee. We note, however, that it is not
clear that the benefits referred to in provisions (3) through (5) are
benefits to which Complainant is already entitled as a Federal employee.
With regard to the “scorecard” referred to in provision (3),
the Agency argues that “it is the supervisor and employee's shared
responsibility to create a professional development plan and to have
a system in place to track performance.” Decision, p. 4. While that
may well be true as a general statement, the Agency has not shown how
this is to be done, and specifically, has not shown that all employees
were already using employee-created scorecards “for measuring [their]
production on correspondence review,” as opposed to using some other
method of tracking employee performance.
Similarly, with regard to provision (4), while it may well be true that
it is already “the supervisor's responsibility to provide feedback as it
pertains to ‘customer complaints, concerns, or admonitions’ regarding
[Complainant’s] interaction with customers, along with affording
[Complainant] the opportunity to respond to such complaints, concerns
or admonitions in connection with [his] performance or conduct,”
the language of provision (4) provides a framework for providing such
feedback (“within 30 days of receipt”) that the Agency has not shown
is otherwise available absent the Agreement. Furthermore Complainant
argues that, while in theory he may already be entitled to the benefits
referenced in those provisions, in practice, the Agency did not provide
such benefits to its employees. Finally, with regard to provision (5),
while it may be true that it is already a supervisor’s responsibility to
provide feedback and measure an employee’s performance, the Agency has
not shown that it is also a supervisor’s responsibility to “establish
tracking and reporting systems to monitor equity of access to training
resources, assignment of special projects, and leave to ensure equality
of access and opportunity” for all employees. Complainant therefore
did receive a benefit from this provision, as well as provisions (3) and
(4), and hence there was consideration. We do agree with the Agency,
however, in finding that provision (2) is too vague to enforce given
that it is contingent on “available appropriations or resources.”
We therefore void provision (2).
CONCLUSION
Because the Agency does not appear to dispute that provisions (3), (4)
and (5) were not complied with, we find that the Agency has breached
the Agreement, and we REVERSE the Agency’s Decision. Complainant has
asked that his complaint be reinstated for further processing. We note,
however, that should the complaint be reinstated, then Complainant
and the agency would be returned to the status quo at the time that
the parties entered into the settlement agreement, which would require
that Complainant return any benefits received pursuant to the settlement
agreement. See, e.g., Armour v. Dep’t of Def., EEOC Appeal No. 01965593
(June 24, 1997); Komiskey v. Dep’t of the Army, EEOC Appeal No. 01955696
(Sept. 5, 1996). Specifically, we note that the Agency maintains that
Complainant’s performance rating for the period 2009/2010 was changed
from “Excellent” to “Outstanding” and he received a $2000.00
performance award. Reinstatement of the complaint would mean that
Complainant would be required to return such benefits. We therefore
give Complainant the option, in accordance with the Order below, of
either returning the benefits conferred pursuant to the Agreement and
reinstating the complaint, or keeping the benefits conferred pursuant
to the Agreement and abiding by the terms of the amended Agreement.
Finally, we note that the Agency contends on appeal that the language in
his 2009/2020 performance appraisal regarding the fact that the evaluation
was changed pursuant to a settlement agreement has been removed. If the
language has not been removed, the Agency should do so.
ORDER
The Agency is ordered to notify Complainant of his option to return
to the status quo prior to the signing of the settlement agreement.
The Agency shall so notify Complainant within thirty (30) calendar days
of the date this decision becomes final. The Agency shall also notify
Complainant that he has fifteen (15) calendar days from the date of his
receipt of the Agency's notice within which to notify the Agency either
that he wishes to return to the status quo prior to the signing of the
Agreement or that he wishes to allow the terms of the Agreement to stand.
Complainant shall be notified that in order to return to the status quo
ante, he must return any benefits received pursuant to the Agreement.
The Agency shall determine any payment due Complainant, or return
of consideration or benefits due from Complainant, within thirty (30)
calendar days of the date this decision becomes final, and shall include
such information in the notice to Complainant.
If Complainant elects to return to the status quo ante and he returns
any monies or benefits owing to the Agency, as specified above,
the Agency shall resume processing Complainant’s complaint from
the point processing ceased pursuant to 29 C.F.R. § 1614.108 et seq.
If Complainant elects not to return to the status quo ante, i.e., not
to return any consideration owing the Agency, the Agency shall notify
Complainant that the terms of the settlement agreement shall stand.
The Agency, if it has not already done so, shall remove language in
Complainant’s 2009/2010 performance appraisal that states that the
changes to his evaluation were pursuant to a settlement agreement.
A copy of the Agency's notice to Complainant regarding his options,
including the determination of consideration due or owing, as well
as a copy of either the correspondence reinstating the complaint for
processing or the correspondence notifying Complainant that the terms
of the Agreement will stand, must be sent to the Compliance Officer,
as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. 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 (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 (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 (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
February 7, 2012
__________________
Date
1 These numbers refer to the numbering in this decision alone.
The numbering on the original settlement agreement may differ.
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0120114180
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120114180