0120130428
07-30-2015
Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120130428
Agency No. FS-2010-00287
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated August 22, 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 Contract Specialist at the Agency's USDA Forest Service, Region 2 facility in Golden, Colorado.
On April 14, 2011, Complainant and the Agency entered into a settlement agreement to resolve an EEO matter. The settlement agreement provided, in pertinent part at Section A, Terms 1 and 2, that:
(1) The Agency agrees [Complainant's] FY 10 Performance Appraisal will be completed within two weeks of the signed agreement. He will receive a "Fully Successful" rating to close out FY 10. His merit promotion to the GS-11 will be on hold for 60-90 days, pending a review of his performance. The future review of [Complainant's] performance will reflect a "fresh start," providing him with an opportunity to demonstrate successful performance by considering and evaluating his performance from the date of this signed Agreement forward. Depending on the outcome of that review and [Complainant's] performance, the appropriate action will be taken (i.e. promotion to GS-11, allow for another 60-90 day review, or placement on a Performance Improvement Plan);
(2) [Complainant] and [named official] will attend a session together to discuss FY 11 accomplishments and expectations. This session should be interactive in nature, where both parties are engaged in the FY 11 planning process, while sharing their expectations for all areas of concern such as (communication, respect, performance, etc...) A neutral will be provided to assist in this discussion... This session should take place within 30 days of the signed agreement; and
(3) [The parties agree] that they are entering into this Agreement voluntarily, without coercion or duress, and that they fully understand the terms of this Agreement.
The record shows, with regard to Term 1, Complainant received a "Fully Successful" FY 2010 performance appraisal, dated April 29, 2011.
The record shows that the required session was delayed because a neutral mediator was not available. Another Alternative Dispute Resolution Specialist agreed to participate as the "neutral." Complainant and his supervisor did attend a session together and discussed his accomplishments and their expectations. The session was completed on June 24, 2011.
In a memorandum dated November 9, 2011 to Complainant, Complainant's supervisor informed Complainant that she would not recommend Complainant for promotion to the GS-11 level at that time, because Complainant had not met all of the criteria. She stated that she will be able to recommend the Complainant for the promotion after he has completed additional training and she listed the required training courses. She encouraged Complainant to provide her with an alternative action plan.
By an electronic mail communication dated November 7, 2011, Complainant notified the Agency that he believed that the Agency was in breach of Terms 1 and 2 of the settlement agreement, and requested that the Agency implement its terms. Specifically, Complainant alleged that the Agency failed to provide him with the Performance Appraisal within the stated period because the appraisal was issued two days late. He also claimed that he did not get a "fresh start," because he did not receive a promotion to a GS-11 grade level.
With regard to Term 2, he stated that he was not provided with a neutral during the discussions. He also stated that the session was not completed in a timely manner. He acknowledged that the discussion occurred, but he stated the only things that were discussed were accomplishments and expectations. On December 2, 2011, Complainant advised his supervisor that the training courses which she recommended were "virtually impossible" to obtain and that the training could not be expeditiously completed. In addition, Complainant complained that he was "not afforded the opportunity to take any training that may be needed."
In its August 22, 2012 FAD, the Agency concluded that no breach occurred because it "substantially complied" with the terms of the Agreement. The Agency reasoned that Complainant had not shown any injury or benefit deprivation by the 48-hour delay associated with the delivery of his appraisal. The Agency found that the delay in facilitating the meeting was due to its efforts to find an acceptable mediator. The Agency found that it cured its failure to perform within the required timeframes.
With regard to the training, the Agency concluded that Complainant did not complete the recommended training and did not offer an acceptable alternative plan for training. The Agency found that Complainant's claims "are insufficient to support a finding of non-compliance."
This appeal followed.
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).
We find that the Agreement was valid and is binding on both parties.
In the instant case, the Agreement stated that Complainant would be provided an opportunity to demonstrate successful performance and after a further review of his performance, the "appropriate action" will be taken. Complainant has not shown that the Agency's actions were inconsistent with the terms of the Agreement. The Agreement did not mandate that Complainant would be given a promotion by a date certain.
To the extent that there was a breach because of the delays, we find that the Agency cured the breach.
If Complainant wishes to address new claims of discrimination and / or retaliation with regard to his claim that he was not afforded an opportunity to receive training, he should initiate EEO counseling with the Agency as those claims must e addressed in a separate complaint.
CONCLUSION
We find that the Agency did not breach the Agreement. Accordingly, we 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 tends 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
July 30, 2015
__________________
Date
2
0120130428
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130428