0120122598
09-07-2012
Joseph P. Hastings, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Agricultural Marketing Service), Agency.
Joseph P. Hastings,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Agricultural Marketing Service),
Agency.
Appeal No. 0120122598
Agency No. AMS-2011-00103
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated April 5, 2012, finding that it was in compliance with the terms of a January 4, 2011 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On January 4, 2011, Complainant and the Agency entered into a settlement agreement to resolve matter pursued in the EEO complaint process. The settlement agreement provided, in pertinent part:
A. In consideration of Complainant's consent to the terms of this Agreement, the Agency agrees:
1. The Information Technology Service management officials agree to change the "Effectively Manages Time and Workload" element in the Complainant's 2010 performance appraisal from does not meet to meets. The appraisal will be changed from marginal to fully successful. Except as provided herein it is understood and agreed that there are no further changes being made to the Complainant's performance records.
2. In addition, the Information Technology Service immediate supervisor will provide primary duty assignments to the Complainant orally and will follow up in writing.
By e-mail to the Agency dated September 6, 2011, Complainant alleged breach of provisions A.1. and A.2. Specifically, Complainant alleged that his supervisor (S1) cancelled weekly meetings with him, and "has stopped sending me written follow up or guidelines, which leave me reworking the original topics."
Further, Complainant alleged that S1 told him that he could only attend the Remedy Modules training "yet she has failed to have the Remedy server placed in service, it has been over two years [since] Remedy was purchased and her training guidelines mandated. That means for the past two years, I have not attended any training; yet I was tasked to migrate AMS to Windows 7 and Office 2010 and Adobe 10 without proper training."
In its April 5, 2012 final decision, the Agency found no breach of provisions A.1. and A.2. Specifically, the Agency stated that S1 found that the Agency is in compliance with the agreement. Regarding provision A.1., the Agency noted that on December 14, 2010, management made the requisite changes in Complainant's 2010 performance evaluation.
The Agency determined that provision 2.A. did not require one-on-one weekly meetings, which S1 established and are, therefore, outside of the scoop of the terms of the agreement. The Agency noted that S1 stated that sufficient oral and written communications were transmitted between her and Complainant. S1 further stated that Complainant received training in Windows 7 on AgLearn with additional training opportunities in Office 10, but asserted that Complainant does not have daily duties involving Adobe 10.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that he was retaliated against by S1 following the signing of the settlement agreement. Specifically, Complainant states "why did I get a letter of reprimand while under a settlement agreement and an approved reasonable accommodation? No written instruction[s] were given to me." In support of his assertions, Complainant submits a DVD entitled "USDA Articles of [Complainant's name]" which contains 650 e-mails and a spreadsheet containing "event time lines that will show and meet my burden of proof of my claim of the USDA Complaint no.: AMS-2011-00103 breach."
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).
The Agency complied with the terms of the settlement agreement. Provision A.1. of the agreement provides for an affirmative Agency obligation to change the "Effectively Manages Time and Workload" element in Complainant's 2010 performance appraisal from "does not meet" to "meets;" and change the appraisal from "marginal" to "fully successful." The record reflects that the Agency made the requisite changes following the execution of the agreement. Complainant has presented no evidence of breach. Therefore, the Agency properly found no breach of provision A.1.
Provision A.2. of the agreement provides for an affirmative Agency obligation that S1 would provide Complainant primary duty assignments orally, and follow up in writing. The record contains a copy of S1's statement dated September 29, 2011. Therein, S1 stated "per the settlement agreement, oral communication is conducted daily. Most of the day to day communication is impromptu whereby [Complainant] is updated me on a certain task, asking for additional guidance, or inquiring about something that is not a part of his responsibility...as an extra effort, and not part of the settle agreement, I established weekly one-on-one meetings with [Complainant] to ensure he stays on task and that there was a clear understanding of what he was to be working on [emphasis in its original]." The record also contains a copy of S1's email correspondence with Complainant concerning his assignments.
Complainant alleged that he was not provided training opportunities and one-on-one weekly meetings with S1. However, the settlement agreement does not specify that Complainant would be provided training opportunities and have one-on-one weekly meetings. If Complainant had wanted to be provided training opportunities and one-on-one meetings, he should have included it as part of the subject settlement agreement. See Jenkins-Nye v. General Services Administration, EEOC Appeal No. 01851903 (March 4, 1987).
Finally, to the extent that Complainant may wish to address matters relating to any purported denial of reasonable accommodation or to raise any other new allegations that were not the subject of the settlement agreement, he is advised that he should initiate contact with an EEO Counselor thereon.
The Agency's finding of no breach of the January 4, 2011 settlement agreement was proper and is AFFIRMED.
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
September 7, 2012
__________________
Date
2
0120122598
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122598
6
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