01986307
06-08-2000
John C. McClain, Sr., Complainant, Louis Caldera, Secretary, Department of the Army, Agency.
John C. McClain, Sr. v. Department of the Army
01986307
June 8. 2000
John C. McClain, Sr., )
Complainant, )
) Appeal No. 01986307
) Agency No. AJAGFO9603G0110
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely appeals to the Commission for a determination as to
whether the agency complied with the terms of a settlement agreement into
which the parties had entered.<1> See 64 Fed. Reg. 37,644, 37,659, 37,660
(1999)(to be codified and hereinafter referred to as EEOC Regulation 29
C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b). The appeal is accepted by
the Commission in accordance with 64 Fed. Reg. 37,644, 37, 659 (1999)
(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency breached the settlement
agreement entered into by the parties on July 10, 1997.
BACKGROUND
The settlement agreement in question settled complainant's complaint,
filed March 12, 1996, which claimed that, based on race (Black), the
agency discriminated against him when it failed to non-competitively
promote him from a GS-11 to GS-12, Program Analyst.
The settlement agreement (SA) provided, in pertinent part, that:
3.a. [The Army agrees] to reassign the complainant, within one month
from the date of this agreement, under the direct supervision of [MO-1]
a senior level (GS-13) budget analyst for a period of 6 to 9 months.
The complainant can use this assignment to resubmit his promotion packet
at any time during this period that he believes that he has demonstrated
GS-12 level capability. ...
3.a.1. The complainant will be assigned GS-12 type duties during the
reassignment. Assignment Performance TAPES Standards will be discussed
and agreed to by the supervisor and complainant prior to beginning the
reassignment.
3.a.4. The [agency] agrees to provide necessary training, both formal
and on the job, to give complainant every opportunity to achieve success.
3.a.5 The above supervisor will meet with complainant to provide monthly
progress reports. A written Memorandum For Record detailing what was
discussed at each meeting will be prepared by the supervisor for signature
by both parties. An additional opportunity will be given to both parties,
supervisor and complainant, to submit additional written comments to be
attached to the Memorandum For Record.
3.a.6. Outside of documents contained in the promotion packet provided
by the complainant, there will be no oral or written attempt to influence
the selecting official by Agency officials.
4.b. [The complainant agrees] that the aforementioned actions are the
total actions to be taken on the part of the Army. ...
By letter to the agency dated June 22, 1998, complainant alleged that the
agency was in breach of the SA, and requested that the agency specifically
implement the terms. Specifically, complainant alleged that the agency
violated the SA in the following particulars:
1) In violation of paragraphs 3.a.1. and 3.a.4., on June 9, 1998, MO-1
refused to give complainant the opportunity to complete a project which
was one of the GS-12 type duties assigned to him as part of the SA.
2) In violation of paragraph 3.a., on June 9, 1998, the complainant
was told by MO-1 that effective June 8, 1998, he would be under the
supervision of a new supervisor (MO-2). Complainant claimed that this
violated the terms of the agreement in that he had not completed nine
full months in the reassigned position, having started the reassignment
on September 30, 1997.
3) In violation of paragraph 3.a.6., in February or March 1998, MO-1
was transferred to be under the direct supervision of MO-3, the agency
official principally involved in complainant's original complaint,
allegedly in order for MO-3 to influence MO-1's decisions regarding
the complainant.
4) In violation of paragraph 3.a.5., MO-1 failed to meet with and
provide a written memorandum on complainant's progress on a monthly basis.
5) In violation of paragraph 3.a.1., complainant had not received
his Assignment Performance TAPES Standards until October 28, 1997,
almost one month after he had begun his reassignment. Additionally,
one of the standards was changed during the period of the reassignment,
allegedly at the direction of MO-3.
6) In violation of paragraph 3.a.4., complainant did not receive
any formal training and was not teamed with personnel who could have
informally trained him in his duties.
When the complainant failed to get a response from the agency within 35
days, as provided for at 29 C.F.R. � 1614.504(b), he submitted an appeal
to the Commission on August 18, 1998. In a final agency decision (FAD)
dated September 15, 1998, the agency concluded that it was not in breach
of its agreement with complainant and that it had fully complied with
the terms of the SA.
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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. That section further provides that if the complainant believes
that the agency has failed to comply with the terms of a settlement
agreement, the complainant shall notify the Director of Equal Employment
Opportunity of the alleged noncompliance with the settlement agreement
within 30 days of when the complainant knew or should have known of
the alleged noncompliance. 29 C.F.R. � 1614.504(a). The complainant
may request that the terms of the settlement agreement be specifically
implemented or request that the complaint be reinstated for further
processing from the point processing ceased. Id.
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 reviewing settlement agreements to determine if
there is a breach, the Commission is often required to ascertain the
intent of the parties and will generally rely on the plain meaning rule.
Wong v. U.S. Postal Service, EEOC Request No. 05931097 (April 29, 1994)
(citing Hyon O v. U.S. 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, then its meaning must be determined from the
four corners of the instrument without any resort to extrinsic evidence
of any nature. Id. (citing Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984)).
Issue 1
With respect to the alleged violation of paragraphs 3.a.1. and
3.a.4. (when MO-1 refused to give complainant the opportunity to complete
a project which was one of the GS-12 type duties assigned to him as part
of the SA), the evidence of record shows that this project was assigned
on February 19, 1998, and originally had a due date of April 9, 1998.
At the complainant's request, the deadline was extended by MO-1 to
April 23, 1998. MO-1 found the report submitted on that date "grossly
unacceptable" and returned it to complainant for rewriting, with a new due
date of May 14, 1998, and a briefing scheduled on the report for May 19,
1998. MO-1 reviewed complainant's revisions on May 16 and was "dismayed"
to find them "still unacceptable." Although complainant requested yet
more time to work on the project, MO-1 viewed the May14 version as the
final product, and refused to extend the deadline. According to MO-1,
a full performance GS-12 analyst would have been able to complete the
project in "ten working days."
Complainant claims that he should have been given the full 9 month period
in his reassignment, which would have allowed him more time to complete
this project. He claims that he was not given the formal or informal
training he would have needed in order to successfully complete the
project, and that MO-1 was never clear as to what the project entailed.
He argued that if he were given more time to work on it, once he knew
what MO-1 wanted, he would have been able to successfully complete it.
We find that the SA did not encompass complainant being given unlimited
chances to complete the projects that he was to be evaluated on during
the reassignment. Paragraph 3.a.1. says that complainant will be
"assigned GS-12 type duties during the reassignment," which he was.
It does not say that he would be able to work on each assignment until
it was successfully completed. There is nothing in the record to show
that the agency denied complainant informal on-the-job training which
would have been necessary in order to complete the project. We find
that with regard to this issue, the agency did not violate the SA.
Issue 2
Regarding the claimed violation of paragraph 3.a., when complainant was
told by MO-1 that effective as of June 8, 1998, he would be under the
supervision of a new supervisor, MO-2, we find that the SA specifies that
the reassignment will be for a period of 6 to 9 months (emphasis added).
There is no assurance in the SA that the reassignment would last a full
nine months. The agency had completed the minimum of six months and was
therefore free to end the reassignment at any point in time after that.
Accordingly, the agency was not in violation of the SA when it ended
complainant's reassignment on June 8, 1998.
Issue 3
Complainant claimed that paragraph 3.a.6. was violated when MO-1 was
transferred to the direct supervision of MO-3. We find that the language
of the relevant section does not specifically exclude MO-1 from being
under the supervision of MO-3. The complainant did not include, as part
of the SA, a term clearly stating that the senior level budget analyst
under whose supervision he would be during the reassignment was not to be
under the supervision of MO-3. Therefore, we find that the agency was not
in violation of the SA when it placed MO-1 under the supervision of MO-3.
Issue 4
In violation of paragraph 3.a.5., MO-1 allegedly failed to meet with and
provide a written memorandum on complainant's progress on a monthly basis.
In the memorandum to the record provided by MO-1 on August 4, 1998,
MO-1 admitted that he had not met with complainant monthly and prepared
written memorandums on his progress. He acknowledged that written
progress reports had only been prepared in October 1997, December 1997,
February 1998 and May 1998. MO-1 stated, however, that complainant had
agreed that written reports should not be prepared until he had finished
an element in the Standards. MO-1 also stated that he and complainant had
"many informal contacts and he was always well aware of his progress and
status." Complainant disagrees with this interpretation, but admits that
this was not important to him until June 5, 1998, when he found out the
assignment was to end. He admittedly did not bring this to the attention
of the agency until the end of the reassignment period. We find that
through complainant's conduct and actions, he waived the requirement
contained in the SA that the agency provide a written memorandum to
him on a monthly basis. According to MO-1 and documents contained in
the record, it appears complainant was given periodic status reports.
We find therefore, that the agency did not violate the SA in this respect.
Issue 5
In violation of paragraph 3.a.1., complainant claimed that he had not
received his Assignment Performance TAPES Standards until October 28,
1997, almost one month after he had begun his reassignment. According to
a memorandum contained in the record, complainant and MO-1 had discussed
the Standards and agreed to them verbally on July 29, 1997. Complainant
did not sign those Standards until October 28, 1997. We find, however,
that the complainant "discussed and agreed to" the Standards prior to
the beginning of the reassignment, and that the failure of the agency
to present the Standards to complainant for his signature until after
he had started his reassignment does not violate the terms of the SA.
Additionally, complainant alleged that one of the Standards was changed
during the period of the reassignment, at the direction of MO-3. The SA
does not articulate that the Standards could not be changed during
the course of the reassignment. The record shows that another team of
personnel had been tasked with the very project (among other projects as
part of an evaluation of the system changes slated to begin in August
1998) assigned to complainant as one of his Standards. MO-1 stated
that he thought it would be more appropriate to provide complainant
with a different Standard to complete, with which he claimed complainant
agreed and which complainant had successfully completed, and he denied
that MO-3 had directed him to remove this Standard. Complainant argued
that MO-3 knew this particular project was one of his Standards and that
by assigning it to a different team of personnel, this was a violation
of the SA. We find that the change of the Standard did not violate the
terms of the SA, because complainant did not show that the SA prohibited
any change in Standards during the course of the reassignment.
Issue 6
In violation of paragraph 3.a.4., complainant claimed he did not receive
any formal training and was not teamed with personnel who could have
informally trained him in his duties. The SA is unclear on whose burden
it was to initiate the formal training, whether it was up to complainant
to find courses and request them, or whether the agency was responsible
for researching potential training classes appropriate for the complainant
to take. There is nothing in the file which would shed light on the
intentions of the parties on this respect. Regardless of whose burden it
was to initiate the training, complainant did not take any formal courses
during the course of the reassignment. The record, however, does not
reveal that complainant had raised this issue during the course of his
reassignment, or that he requested particular classes. MO-1 stated
that there was no formal training that he was aware of which would
focus on the duties complainant was completing during his reassignment.
Complainant submitted, on appeal, a copy of two course catalog pages with
classes relevant to his reassignment, however they are dated nearly 4
years previous to the reassignment period. Those pages also specify that
the courses noted were for the GS-5/7/9 level personnel; complainant was
a GS-11. There is no evidence that courses of this nature, appropriate to
complainant's GS level, were available during the September 1997 through
June 1998 time frame. Additionally, the complainant has not met his
burden of showing that the employees to whom MO-1 referred complainant
for advice and help on performing GS-12 level duties did not satisfy the
"on the job" training mentioned in paragraph 3.a.4 of the SA. We find
therefore, that the agency did not violate the SA in this respect.
CONCLUSION
Accordingly, we find that the SA was not violated, and the decision of
the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
__06-08-00_______ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.