01A12424_r
06-25-2002
Kevin L. Cox, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Kevin L. Cox v. Department of the Air Force
01A12424
June 25, 2002
.
Kevin L. Cox,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A12424
Agency No. RX1M00339
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated January 24, 2001, finding that it
was in compliance with the terms of the October 17, 2000 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.
The settlement agreement provided, in pertinent part, that:
(2) In exchange for the promises of the Complainant in paragraph 1
of this Agreement, the Agency agrees to: Reaccomplish [complainant's]
1999-2000 appraisal to reflect an excellent rating, and the following
appraisal factor scores: Work Effort-8, Adaptability to Work-7,
Problem Solving-7, Working Relationships-7, Communication-8, Work
Productivity-7, Self-Sufficiency-8, Skill in Work-8, Work Management-8,
with a 1% cash award. This will be accomplished no later than 3 Nov 00.
Management also agrees not to block or delay [complainant's] reassignment
and that [complainant] will be allowed to reassign effective 23 Oct 00
to WR-ALC/LE without further commitment to WR-ALC/TIPE.
By email to the agency dated January 17, 2001, complainant alleged that
the agency breached the settlement agreement, and ostensibly requested
that the agency reinstate his underlying complaint. A fair reading of the
record reflects that complainant alleged that the agency failed to raise
his 1999-2000 appraisal to an excellent rating and grant him a monetary
award by November 3, 2000, as required by provision (2) of the agreement;
and that the monetary award should be based upon his status as a GS-12,
Step 7 employee, rather than as a GS-12, Step 6 employee.<1>
In its January 24, 2001 final decision, the agency concluded that it
did not breach the agreement. The agency determined that it complied
with provision (2) of the agreement when it granted him a cash award
of $563.00 that amounted to 1% of his annual salary as a GS-12,
Step 6 employee. The agency determined that based upon the fact that
complainant received a within-grade increase after the appraisal cutoff
of March 31, 2000, the amount of his award was properly based on his
salary as a GS-12, Step 6 employee. The agency did not address the issue
of the performance appraisal in its final decision; however, on appeal,
the agency contends that after a �slight delay,� it granted complainant
the promised performance appraisal on November 13, 2000.
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. Department of Defense,
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. Department 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 v. United States Postal
Service, 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 determines that the agency properly found no breach of the
agreement. The record reveals that the agency approved complainant for
an award of $563.00 (1% of his annual salary as a GS-12, Step 6 employee)
on December 5, 2000. The record also reveals that complainant received
a within-grade increase to GS-12, Step 7 effective April 23, 2000.
The record further reflects that award amounts were based on the annual
salary of employees as of March 31, 2000, the end of the last appraisal
period. Finally, the record contains documentation evidencing that the
agency changed complainant's performance appraisal to �excellent� on
November 13, 2000 for the period April 1, 1999 through March 31, 2000.
We note that both actions were undertaken several days beyond the
November 3, 2000 date specified in provision (2). Nevertheless, the
Commission has found substantial compliance with the terms of a settlement
breach where agencies have committed, in good faith, a technical breach
of a provision of the agreement which did not undermine its purpose
or effect. Moreover, we have held that the failure to satisfy a time
frame specified in a settlement agreement does not prevent a finding of
substantial compliance of its terms, especially when all required actions
were subsequently completed. Lazarte v. Department of the Interior,
EEOC Appeal No. 01954274 (April 25, 1996). We find no evidence in
the record that the agency's delay in complying with provision (2)
was the result of bad faith or undermined the purpose or effect of
the agreement. Moreover, we are persuaded that the agency correctly
calculated complainant's monetary performance award as 1% of the salary of
a GS-12, Step 6 employee, which reflects complainant's status during the
relevant appraisal period. Consequently, we determine that the agency
substantially complied with provision (2) when it granted complainant
a monetary award of $563.00 and raised his performance appraisal to an
�excellent� rating.
Accordingly, the Commission AFFIRMS the agency's finding of no breach.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
June 25, 2002
__________________
Date
1The Commission notes that the record does
not contain a copy of the email raising the breach claim, dated January
17, 2001, however, the final agency decision read in conjunction with
complainant's statements on appeal, reflect that the breach claims that
were raised can be reasonably identified in the manner discussed above.