0120090895
05-12-2009
James R. Holland, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
James R. Holland,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120090895
Agency No. 05-00019-00420
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated January 8, 2008, finding that it
was in compliance with the terms of the November 14, 2006 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:
Complainant has already made application for the career rotational Science
and Engineer Program for Eglin and Hurlbert Air Force Bases. ...[T]he
Navy will not interfere, directly or indirectly, with complainant's
participation in the program, including but not limited to the ultimate
acceptance of a job through that program. Additionally, the complainant
will pursue other Federal Government employment that he considers
acceptable in his professional field. Complainant will provide NAVAIR
Counsel, AIR-11.4, quarterly e-mails showing ...all other job search
efforts, if he has made any, other than the career rotational program.
Management officials within NAVAIR AIR 4.4 will not provide negative
information to the rotational program or potential employers, thorough
either formal or informal channels.
By letter to the agency dated July 9, 2008, complainant alleged that
the agency was in breach of the settlement agreement. Specifically, he
alleged that agency management officials provided negative information
to his rotational program and potential employers.
Complainant was employed in a managerial position performing financial
duties with the Joint Oil Analysis Program (JOAP), Technical Support
Center (TSC). In this job, he worked with other military agencies.
D.M., who was with NAVAIR AIR 4.4, served as the agency representative
to the JOAP Executive Committee prior to the Fall of 2008. In this role,
D.M. had some oversight of complainant's duties, including input into
his performance appraisals. E.T.U. Declaration. Thereafter, it appears
D.M.'s duties properly included some ongoing additional involvement.
Complainant provided a number of examples of D.M. communicating to
people fault with complainant's performance and ability to properly do
his job.
In its January 8, 2009 FAD, the agency concluded that it did not breach
the settlement agreement. Focusing on two e-mails by D.M., the FAD found
one was sent to a limited number of people and did not contain negative
information, and the second e-mail did not provide negative information
formally or informally to complainant's rotational program or potential
employers.
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 O 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).
On appeal, complainant counters that while the agency avers it did not
provide negative information to the United States Air Force Career
rotational program, it breached the settlement agreement because it
provided it to others, who were potential employers. The meaning of the
language in the settlement agreement that negative information will not
be provided to the rotational program is unclear, and we find complainant
now concedes this was not done. We also find that complainant has not
shown the negative information was supplied to potential employers.
While D.M. communicated negative information about complainant's
performance and ability to do his job to people, complainant has not
shown it was not done in the context of a job search. Rather, it was
done in the context of D.M.'s oversight role. Complainant's argument
that the various services he worked with were potential employers,
and hence the settlement agreement prohibited D.M. from communicating
anything negative to them (even in his oversight role of complainant's
work) is unpersuasive. To a lesser extent, complainant discussed
negative information about him raised by others, but again he did not
show it was provided to potential employers, within the meaning of the
settlement agreement.
The settlement agreement provides that during complainant's remaining
tenure with JOAP-TSC, if he has any complaint against the Navy or a
Navy employee, he will initiate or seek corrective action through the
Air Force chain of command. Complainant argues that the settlement
agreement is invalid because this incorrectly required him to complain
to the Air Force when the Navy was responsible. We find this procedural
issue does not invalidate the settlement agreement. Complainant still
had an appropriate avenue to allege breach, as evidenced by the fact
that the breach claim was processed by the Navy, which issued a FAD
finding no breach.
Complainant also argues on appeal that the agency breached a prior
second settlement agreement, dated February 15, 2000. This matter
is not before us. In his July 9, 2008, notice of breach, complainant
alleged the breach of November 14, 2006 settlement agreement, and did
not allege breach of the earlier one. The record contains documentation
that by e-mails dated July 28, 2008, and September 11, 2008, complainant
alleged alternatively to a Navy EEO counselor and what appears to be an
Air Force EEO official that both settlement agreements were breached.
The e-mails, however, did not state the date of the earlier settlement,
discuss any of its terms, or specifically explain which provisions were
breached. The FAD did not rule on the breach of the February 15, 2000,
settlement agreement. There is insufficient information in the record
to rule on this matter.1
Throughout the processing of his breach claim, including his notice of
breach, complainant alleged that various agency actions were reprisal
for EEO activity. His allegation that subsequent acts of reprisal
discrimination violated a settlement agreement should have been handled
as a request for counseling on a discrimination claim. Cf. 29 C.F.R. �
1614.504(c). On remand, the agency shall treat the August 3, 2008,
notice of breach, and related follow up contacts with the EEO office,
as a request for EEO counseling, and counsel complainant and process
the matter in accordance with 29 C.F.R. � 1614.105(b)(1) et seq.
ORDER
The agency shall treat the July 9, 2008, notice of breach, and related
follow up contacts with the EEO office, as a request for EEO counseling,
and counsel complainant and process the matter in accordance with 29
C.F.R. � 1614.105(b)(1) et seq.2 The agency shall acknowledge to the
complainant that it has received his request for counseling within thirty
(30) calendar days of the date this decision becomes final.
A copy of the agency's letter of acknowledgment to complainant must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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 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 (S0408)
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 (Z1008)
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
May 12, 2009
__________________
Date
1 If complainant wishes to separately allege breach of this settlement
agreement, he should contact the agency to do so as instructed in the
settlement agreement, or contact the relevant agency EEO Director.
Complainant is advised that to the extent he is alleging acts of
reprisal subsequent to the settlement agreement constituted breach,
such allegations should be processed with the matters remanded in the
order below. 29 C.F.R. � 1614.504(c).
2 If necessary, the agency EEO office shall coordinate the Air Force
EEO office to ensure that complainant's claims are being processed by
the correct agency or agencies.
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0120090895
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090895