0120113587
11-28-2012
Ervin M. Emanuel, Complainant, v. Charles F. Bolden, Jr., Administrator, National Aeronautics and Space Administration, Agency.
Ervin M. Emanuel,
Complainant,
v.
Charles F. Bolden, Jr.,
Administrator,
National Aeronautics and Space Administration,
Agency.
Appeal No. 0120113587
Agency No. NCN-10-JSC-0481
DECISION
Complainant filed an appeal with this Commission from a Final Decision by the Agency dated June 23, 2011, finding that it was in compliance with the terms of a Settlement Agreement, dated June 24, 2011, into which the parties entered. For the following reasons, the Commission AFFIRMS the Agency's Final Decision.
BACKGROUND
At the time of events giving rise to his complaint, Complainant worked as a Division System Manager, Avionics at the Agency's Johnson Space Center facility in Houston, Texas. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On June 24, 2010, Complainant and the Agency entered into a settlement agreement to resolve the matter. The Settlement Agreement provided, in pertinent part, that:
2(a) Division Chief [C1] shall initiate attempts to begin mentoring with [Complainant] and other NASA parties. The goal of this mentoring is to assist in achieving [Complainant's] career goals and promotion potential discussions to GS 15 and above. [C1] will discuss [Complainant's] goals with other NASA officials to explore setting up meetings and possibly afford [Complainant] with a 'rotation' opportunity. All parties understand that there are no guarantees of new or future employment or advancement, however [the parties] pledge to make good faith efforts in this mentoring endeavor.
2(b) [C1] shall review the current work space of [Complainant] and explore what potential there is to relocate him to a more agreeable location.
2(d) The parties agree that good communication is key to their future working relationship. As such, all parties shall keep an open mind and do their best to cooperate with each other for the betterment of all parties concerned.
By letter to the Agency dated March 30, 2011, Complainant alleged that the Agency was in breach of the settlement agreement, and requested that the Agency specifically implement its terms. Specifically, Complainant alleged that the Agency failed to provide him with meaningful mentoring and a high visibility rotation opportunity. Complainant also states that he was offered office space he considered deplorable and was not offered vacant office space that became available as a result of the retirement of the Space Shuttle program.
In its Final Decision, the Agency concluded that C1 initiated mentoring relationships for Complainant but that Complainant did not follow up on the contacts made by C1 for him. The Agency also found that C1 reviewed available office space and offered Complainant alternate office space, but that Complainant rejected the offer. The Agency found that it had complied with the terms of the Settlement Agreement
ANALYSIS AND FINDINGS
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, we find that the Agency properly concluded that it has complied with the plain language of the Settlement Agreement. We find that Complainant acknowledges that he was provided support by C2 and C3 for his Individual Development Plan (IDP) and his resume for the purpose of a rotation opportunity. We find nothing in the Agreement guarantees that Complainant will be selected for a promotional opportunity or rotation, but that mentoring opportunities will be initiated by C1 and Complainant does not dispute that the Agency has fulfilled that obligation.
We further find that nothing in the Agreement guarantees Complainant will be offered office space that he considers desirable, but provides that C1 would review available space to determine what space he could offer Complainant. Complainant does not dispute that he was offered alternative office space, only that he did not find it acceptable. There is no evidence of bad faith by the Agency in its implementation of the Agreement.
CONCLUSION
We find the Agency properly determined that it fulfilled its obligations under the terms of the Settlement Agreement and that no breach of the Agreement occurred. We therefore AFFIRM the Agency's Final Decision.
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
November 28, 2012
__________________
Date
1 The Agency and Complainant dispute which Agency case number should be assigned to the Settlement Agreement executed on June 24, 2010. Complainant's submissions on appeal refer to Agency case numbers NCN-08-JSCA-031 and NCN-11-JSC-013.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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