0120092905
12-24-2009
Lawrence Thrash, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Lawrence Thrash,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120092905
Agency No. ARBELVOIR08SEP03729
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated June 19, 2009, finding that it was in compliance
with the terms of a March 11, 2009 settlement agreement into which the
parties entered. See 29 C.F.R. �� 1614.402; 1614.405; and 1614.504(b).
Background
Complainant (African American) was employed by the agency from October
1989 until his removal in April 2009. In total, he had combined military
and federal service of approximately 26 years, and held the position
of Information Technology Specialist, GS-14 in the Office of Public
and Congressional Affairs, at the time of his removal. In October 2007,
complainant filed an EEO complaint alleging race and gender discrimination
against his first-line supervisor concerning a low performance appraisal.
This complaint was settled through mediation, with the agency agreeing to
increase the performance appraisal at issue. However, in October 2008,
complainant filed a second EEO complainant asserting the same first-line
supervisor engaged in ongoing harassment in retaliation for the first
complaint, as well as because of his race and gender. The parties again
entered into settlement negotiations concerning this second complaint,
which eventually resulted in the March 11, 2009 settlement agreement
at issue in the present appeal. The record establishes that during
the negotiations, the agency informed complainant that the first-line
supervisor was in the process of preparing a notice of proposed removal,
although one was not issued prior to the execution of the agreement.
The settlement agreement provided, in pertinent part, that:
3. The Agency agrees:
a. Not to proceed with the proposal to remove the Complainant from
the federal service that is currently being prepared by management and
would be considered as a 3rd offense.
b. The Agency agrees to remove the prior two suspensions from the
Complainant's OPF and from all official records except for the purpose
of enforcing the terms of this agreement as referenced below. The time
suspended will be changed to Leave Without Pay.
c. To restore 128 hours of annual leave. . . .
e. Change the Complainant's performance appraisal for the period
of 1 July 2007 through 30 June 2008 from a 4 block to 3 block.
f. Allow the Complainant to participate in the [agency] Shared
Neutrals program within the dictates of mission requirements as determined
by Complainant's supervisor. . . .
4. The Complainant agrees . . .
c. That this agreement will be maintained in his OPF for a
period of three (3) years or until he leaves the employment of
the Agency whichever occurs first.
d. If [complainant] engages in misconduct of any nature within the life
of this agreement, as defined in paragraph 4C above, that the prior
two suspensions will be reinstated for purposes of supporting a charge
of a 3rd offense which will automatically result in the Complainant's
removal from the federal service without the right to appeal. If the
1st line supervisor believes that Complainant has engaged in misconduct
and therefore has breached this agreement, he/she will so advise the
Complainant in writing. Complainant will be given the opportunity to
present an oral and or written reply to the 2nd line supervisor whose
decision will be final and binding. Complainant understands that he is
waiving the right to appeal the decision of the 2nd line supervisor even
in the case of the removal action.
Within weeks of the execution of the settlement agreement, complainant's
first-line supervisor served him with written notice that he believed
complainant had engaged in misconduct on five separate occasions in
violation of provision 4(d) of the agreement, which would justify his
termination. Complainant filed a written response denying the charges.
On April 28, 2009, the agency removed complainant from employment for
purportedly engaging in misconduct on two occasions1 in violation of the
agreement - for departing about 55 minutes early without prior permission
(AWOL) on March 13, 2009, and for arriving to work 14 minutes late on
March 17, 2009.
By letter to the agency dated May 21, 2009, complainant alleged that
the agency breached the settlement agreement, and requested that the
agency specifically implement its terms and reinstate complainant.
Specifically, complainant alleged that the agency: (1) on April 28,
2009, removed him from his position for reasons that did not constitute
misconduct under the agreement, (2) continued with a proposal to remove
complainant from his position, (3) failed to remove two prior suspensions
from complainant's official personnel file, (4) failed to restore 128
hours of annual leave to complainant, (5) failed to change complainant's
performance appraisal from a 4 block to a 3 block for the July 2007 to
June 2008 rating period, and (6) did not allow complainant to participate
in the agency Shared Neutrals program.
In its June 19 final decision, the agency concluded that it was in
compliance with the March 11 agreement. Specifically, the agency stated
that it removed complainant from Federal service, on April 28, 2009,
for misconduct of absence without office leave (AWOL) and tardiness;
it did not remove complainant's two prior suspensions from his official
personnel file (OPF) because he engaged in misconduct less than two days
after signing the instant settlement agreement, so it did not have time
to do so; complainant will receive the 128 hours of restored leave once
it is processed by an organization over which the agency has no control
- the Defense Finance and Accounting Service; the agency amended the
2007-2008 performance rating from a "4" to a "3;" and complainant did
not participate in the Shared Neutrals Program because of his misconduct
within two days of the settlement agreement. The agency stated that it
acted within the confines of the agreement.
The instant appeal from complainant followed the final decision.
On appeal, complainant stated that the agency failed to respond to
his breach allegation or to accept a new EEO complaint regarding his
termination, so he filed a separate appeal on each matter.2 Further,
complainant stated that the agency acted in bad faith and inappropriately
identified the two attendance matters as misconduct.
Analysis and Findings
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). However, if the terms of the agreement are ambiguous,
the Commission may go beyond the language and look at the intent of the
parties. Wong v. United States Postal Service, EEOC Request No. 05931097
(April 29, 1994).
Complainant argues that the agency did not carry out its obligations under
the settlement agreement in good faith, resulting in his termination being
proposed within weeks of the agreement's execution. The Commission
notes that the agreement required the agency, among other things,
to not proceed with its planned proposed removal, to remove two prior
suspensions from complainant's record, and to only remove complainant
for future "misconduct," although this term was not defined in the
agreement. After thorough review of the record and consideration of
the arguments submitted by both parties on appeal, we are persuaded
that there is evidence of bad faith in the agency's implementation
of the March 11, 2009 settlement agreement. The extraordinary close
proximity between the execution of the agreement (in which management
promised not to proceed with its planned removal action) and the notice
by agency management that it was proceeding with a removal action,
the failure to provide a definition of the critical term "misconduct"
in the agreement, the fact that three of the five "misconduct" charges
lodged by the first-line supervisor were not upheld by upper-level
management, and the relatively minor nature of the alleged "misconduct"
used to end a 26-year government career, all point to the fact that it
is more likely than not that the agency fully intended to continue with
its planned pre-agreement removal action and only signed the agreement
to dispose of complainant's pending EEO complaint before he was removed.
In addition, the agency took the opportunity to convince complainant,
who was not represented by counsel during the negotiations, to waive his
right to appeal a subsequent removal. Under the facts of this case, we
conclude that the record supports a finding of bad faith by the agency
in the implementation of the agreement.
The Commission has previously found that bad faith in implementing a
settlement agreement constitutes a breach. Todd v. Social Security
Administration, EEOC Request No. 05950169 (June 12, 1997); Dupuich
v. Department of the Army, EEOC Appeal No. 0120073901 (November 2, 2007).
Applying this precedent, that Commission concludes that a bad faith
breach has occurred in the instant case. As a result, we are voiding the
settlement agreement3 and are remanding the matter back to the agency to
resume processing of complainant's underlying EEO complaint in accordance
with the following Order. This complaint shall be consolidated with the
EEO complaint the agency is currently processing concerning the removal
action itself. See, supra, note 2.
ORDER
The agency is ordered to resume processing the remanded claims in the
EEO complaint that was settled on March 11, 2009 in accordance with
29 C.F.R. � 1614.108 et seq. The agency shall acknowledge to the
complainant that it has received the remanded claims within thirty (30)
calendar days of the date this decision becomes final. The remanded
complaint shall be consolidated with the complaint currently pending
before the agency on the April 28, 2009 removal action. The agency shall
issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue
a final decision within sixty (60) days of receipt of complainant's
request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 19848,
Washington, D.C. 20036. 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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
December 24, 2009
__________________
Date
1 The deciding official on the removal was complainant's second-line
supervisor, who determined only two of the five charges of misconduct
lodged by the first-line supervisor were supported.
2 We note that, since filing the instant appeal, complainant informed
the Commission that the agency accepted an EEO complaint regarding his
termination so that matter is now moot.
3 It should be noted that the settlement agreement is voided for all
purposes, including serving as a "last chance" agreement.
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0120092905
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092905