0120121724
08-30-2012
Charles T. Lucey, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Charles T. Lucey,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120121724
Agency No. ARHOOD11JAN00138
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated January 26, 2012, finding that it was in compliance with the terms of the 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Physician at the Agency's Carl R. Darnall Army Medical Center at Fort Hood, Texas. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On July 8, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(1) The Individual Development Plan (IDP) approved for the Complainant by [named individual] will remain in effect. The Complainant will be allowed to participate in each of the approved training events identified in the IDP, subject only to overriding mission requirements. In the event any individual training event must be cancelled, coordination will be made with the Complainant to reschedule the training;
(2) The Complainant will receive a closeout NSPS appraisal dated July 2011 with the DCCS, [named individual] as his Higher Level Review;
(3) Within 30 days of assumption of duties as the Chief, Department of Preventive Medicine, the Complainant's first-line supervisor will orient the Complainant, review his performance objectives, and document this meeting. This discussion will also include a review of the department's leave procedures and any other administrative concerns raised by the Complainant.
(4) As soon as possible, but not later than 30 days from the effective date of the agreement, Complainant will complete the on-line Civilian Education System Foundation Course;
(5) For the purpose of facilitating this transition to a new management team, the parties may request the assistance of the Senior Labor Counselor in their discussions.
By letter to the Agency dated December 16, 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 honor its obligations under the agreement in that Complainant has not met with his first-line supervisor as outlined in provision 3, has not been given his 2011 performance appraisal nor has he been permitted to take the approved courses identified in his IDP.
In its January 26, 2012 FAD, the Agency concluded that the Agency was in compliance with the specific provisions of the agreement between the parties. In its response to Complainant's breach allegation regarding his approved IDP courses, the Agency acknowledges that due to budget concerns, Complainant was advised that it would benefit the Agency to delay Complainant's attendance until fiscal year 2012 when courses were offered at a location closer to Complainant's duty station, resulting in a substantial reduction in the Agency's training costs. The Agency also pointed out that pursuant to the agreement, Complainant's participation in approved training events identified in his IDP were "subject only to overriding mission requirements." The Agency contends that the lack of available training dollars and the lower cost of courses in fiscal year 2012 versus those offered in fiscal year 2011, constituted overriding mission requirements as provided in the settlement between the parties.
Concerning Complainant's claim that he has not been provided his closeout performance appraisal dated July 2011, the Agency indicates that the agreement provides no specific date by which Complainant is to receive the July 2011 appraisal. The Agency further indicates that the appraisal has been written by [named individual] as the higher level review in accordance with the settlement agreement. In correspondence to the Agency regarding the alleged settlement breach, Complainant acknowledges that the Agency is working to identify the most appropriate supervisor to sign the appraisal. The Agency further contends that Complainant will receive the July 2011 appraisal once it is determined if Complainant's current supervisor for the position to which he has been detailed should sign off on the appraisal or the supervisor who detailed Complainant into the current position should sign. Nonetheless, Complainant indicates that he has yet to receive his July 2011 appraisal. Complainant also alleges that he has not met with his supervisor, the Chief, Department of Preventive Medicine as provided in the agreement. The Agency argues, however, that Complainant's new supervisor assumed his position on July 20, 2011 and completed a memorandum of record indicating that he met with Complainant on July 29, 2011 regarding his duties. The Agency further indicates that Complainant's supervisor had at least one other "sit down" meeting with Complainant, several telephone conversations, numerous emails and a lunch meeting to discuss Complainant's duties, and other issues related to the organization and its mission.
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).
In the instant case, the Commission finds that Complainant has not demonstrated that the Agency has breached the agreement as alleged with respect to provisions, 1 and 3. Specifically, we note that Complainant has not been denied the opportunity to attend any of the approved courses on his IDP. Rather, the Agency has based its decision to delay Complainant's participation in approved courses until fiscal year 2012 in concern for the Agency's lack of training funds. The Agency further indicates that Complainant met with his first-line supervisor on July 29, 2011, within 30 days of his assumption of duties as the Chief of the Department of Preventative Medicine in accordance with the settlement agreement.
With respect to provision 2, regarding Complainant's performance appraisal, the Commission notes that provision 2 provides no time limit for compliance. In the absence of time frames, the parties must fulfill the terms of a settlement within a "reasonable" amount of time. See Garrison v. Department of Treasury, EEOC Request No. 05950867 (Apr. 24, 1997) (citing Gomez v. Department of the Treasury, EEOC Request No. 05930921 (Feb. 10, 1994)). We note that the record reflects that on the agreement was signed on July 8, 2011, and Complainant submitted his breach allegation 5 months later in December 2011 indicating that he had not received his closeout performance appraisal. At the time of Complainant's March 3, 2012 appeal to the Commission, Complainant had not received the July 2011 performance appraisal. The Commission determines that the agency has not acted within a reasonable time frame in light of the fact that Complainant alleges that after eight months, he has not received his appraisal. While the Agency contends on appeal that that all performance appraisals including Complainant's were finalized on January 5, 2012, the Commission finds that there is insufficient evidence of record reflecting compliance with provision 2.
CONCLUSION
We find therefore that that the Agency has complied with provisions 1 and 3 of the instant matter. However, as noted herein, we find that the Agency has failed to demonstrate that it has complied with provision 2 of the July 8, 2011 settlement agreement regarding Complainant's July performance appraisal. We note that Complainant, on appeal, seeks enforcement of the agreement or reinstatement of his complaint. Pursuant to our authority in 29 C.F.R. � 1614.504(c), we order the Agency to take prompt corrective steps to implement provisions 2 of the settlement agreement dated July 8, 2011.
Accordingly, the FAD is modified, and the agency shall comply with the order below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final, the Agency shall implement the terms of the settlement agreement entered into with Complainant on July 8, 2011. Specifically, the agency will provide Complainant with a closeout NSPS appraisal dated July 2011 with the DCCS, [named individual] as his Higher Level Review in accordance with provision 2 of the settlement agreement. The Agency shall provide the Commission with proof of its implementation of provision 2 of the agreement, 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 (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
August 30, 2012
__________________
Date
2
0120121724
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121724