01A00177_r
06-27-2002
Robert S. Paxton, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Robert S. Paxton v. Department of the Navy
01A00177
June 27, 2002
.
Robert S. Paxton,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A00177
DECISION
Complainant filed a timely appeal with this Commission from an agency
final decision dated August 26, 1999, concerning its compliance with the
terms of two settlement agreements, dated February 16, 1995 and November
27, 1997, respectively. The Commission accepts the appeal. See 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
According to the record, complainant contacted an EEO Counselor on
November 4, 1998, identifying numerous incidents to support his claim of
retaliatory harassment. Complainant contended that this treatment by
his supervisors is related to the EEO matters which were resolved in the
above referenced settlement agreements. The EEO Counselor's report also
reflects that on February 24, 1999, complainant additionally alleged that
certain of these incidents constituted a breach of the above referenced
settlement agreements. The EEO Counselor advised complainant that neither
agreement came under the EEO �umbrella,� because they were both executed
as union agreements.
On May 13, 1999, complainant filed a formal complaint (DON-99-65888-028)
, which the agency accepted by letter dated June 22, 1999. The agency
noted that complainant claimed discrimination on the basis of reprisal,
and framed the claims as follows:
(1) From October 14, 1998, and continuing until present, you have been
harassed by your supervisors. Examples of this harassment included,
but are not limited to:
A. On October 14, 1998, you were issued a Letter of Caution regarding
tool control violation;
B. On November 12 and 13, 1998, you were threatened by your supervisors
in regard to the upcoming supervisory relief position.
C. On December 12, 1998, you were denied the opportunity of shop relief;
D. In January, February, and March 1999, you were impeded in the
processing of your EEO complaint;
(2) On March 31, 1999, you were not selected for a Sheet Metal Mechanic
Leader Position.
Regarding complainant's breach claim, in correspondence exchanged
between the agency and complainant, dated June and July 1999, the agency
averred that the agreements did not fall within the purview of the EEOC,
but instead fell under the union process because the provisions dealt
primarily with union matters and no EEO official executed the agreements.
Complainant disputed this determination, arguing that he withdrew a total
of four EEO matters under these agreements, and was led to believe that
he was executing EEO settlement agreements. Complainant claims breach
of the following provisions:
A. February 26, 1995 settlement agreement:
All issues and concerns will first be discussed with the immediate
supervisor in a courteous and positive manner with an emphasis on
effecting interest-based resolutions. Disagreement or a difference in
perspective over the issues and/or options available for resolution are
not considered legitimate grounds for resorting to an adversarial posture.
B. November 27, 1999 Settlement agreement:
[Both parties agree to abide by ] the attached �Proposed Resolution
Framework,� [wherein the agency will take the necessary actions to
insure]:
1. Employee skills and experience are effectively utilized;
2. Equitable assignment of tasks/jobs;
3. Employee is provided necessary training commensurate with other
similarly situated employees;
4. Equitable treatment of employee commensurate with other similarly
situated employees if conduct and/or attendance [illegible]
Specifically, complainant claims that these provisions were breached
when his supervisors denied him a shop relief assignment and denied
him supervisory relief assignments. Complainant claims that this is
not only inequitable in terms of job assignments, but also denies
him valuable training and fails to utilize his skills. Additionally,
complainant claims that a named supervisor made slanderous remarks against
him in denying him both assignments, which he argues is clear proof of
reprisal. Complainant further contends that he has followed the terms of
the above referenced provisions regarding various unfair labor problems,
but that management failed to respond in kind.
In its August 26, 1999 decision, the agency determined that the settlement
agreements were executed primarily in response to union concerns,
and did not fall within the purview of the EEOC. Alternatively, the
agency next determined that even if they were EEO settlement agreements,
complainant filed his breach claims beyond the 30-day time limit in 29
C.F.R. � 1614.504. The agency then found no breach of the settlement
agreements, finding that the provisions identified by complainant
were �philosophical, esoteric provisions, which are too vague to make
a determination whether they have been breached either by you or by
management.� Finally, the agency determined that complainant raised the
same matters in his formal complaint, finding that he could not raise
the same matters to support a breach claim as well.
Both parties submit detailed appeal statements, along with supporting
documentation, which we have carefully reviewed and considered herein.
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).
We find that each of the settlement agreements at issue was executed, in
part, to settle complainant's pending EEO matters. Moreover, the record
reflects that the agreements were executed by management officials who
purportedly had the authority to obligate the agency to perform the terms
of the agreements, regardless of whether it settled a union matter, an
EEO matter, or an unfair labor practice matter. In this regard, we note
that the agency satisfied several other provisions in the agreements,
such as reduction in discipline; expungement of records; transfer;
up-grade to rating; and change in leave balances. Furthermore, there
is no indication that complainant pursued his breach claim through the
union process, and we note that complainant argues that he was led to
believe that both agreements were EEO settlement agreements, providing a
letter from his EEO Counselor at the time, who attests that the agreements
were part of the EEO process. Therefore, based on this evidence, despite
the agency's arguments to the contrary, we conclude that the instant
breach claims fall within the purview of the Commission's regulations.
See 29 C.F.R. � 1614.504(a).
Notwithstanding the above determination, we find that in its alternative
treatment of the instant claim, the agency improperly construed and
analyzed it as a breach claim. Instead, we find that the instant
claim is more properly viewed as a separate complaint of reprisal.
Specifically, we find that complainant's breach claim concerns subsequent
non-selections for supervisor assignments and a shop relief assignment,
as well as other incidents of purported supervisory harassment, and
that complainant contends that each of these incidents occurred due to
retaliatory animus. EEOC Regulation 29 C.F.R. � 1614.504(c) requires that
such claims be pursued as separate complaints of discrimination, and not
as claims of breach. See, generally, Holley v. Department of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997). Furthermore,
as noted by the agency, review of the record confirms that the claims
raised by complainant in his formal complaint (DON-99-65888-028)
include the same incidents identified by complaint in support of his
breach claim. Therefore, we find that the agency has already properly
processed complainant's claim herein as a separate complaint of reprisal.
Accordingly, for the reasons we have set forth above, we AFFIRM the
agency's decision finding no breach of the referenced settlement
agreements.
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 27, 2002
__________________
Date