0120110314
08-31-2012
Mohammad H. Nash, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (Bureau of Reclamation), Agency.
Mohammad H. Nash,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(Bureau of Reclamation),
Agency.
Appeal No. 0120110314
Agency No. BLM100033
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated September 13, 2010, 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
On January 20, 2009, Complainant worked as an Interdisciplinary Water Resources Planner in a career-conditional appointment subject to a one-year probationary term at the Agency's Lower Colorado Region Resource Management Office, Planning and Resources Management Group which is located in Boulder City, Nevada. Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process.
On June 5, 2009, Complainant filed an EEO complaint alleging that the Agency engaged in unlawful discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., on the basis of national origin (Iraqi), accent (English as second language) and gender (male), when from March 2009 to June 2009: (1) his supervisor (S1) canceled his previously approved attendance to Contracting Officer's Representative Training (COTR), which he believes set him up for failure; (2) S1 subjected him to demeaning, unprofessional behavior by yelling, threatening, and intimidating him; (3) on June 2, 2009, S1 issued him a written warning concerning his failure to follow directions pursuant to a discussion on May 11, 2009; (4) on May 11, 2009, S1 ridiculed him with respect to his alleged inability to communicate and work with clients; (5) S1 informed his clients that he was no longer doing the work due to lack of COTR training; and (6) S1 took decision-making assignments from him and gave those assignments to another employee.
On August 19, 2009, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
1. [The Agency would] detail the complainant to unclassified duties to work on a special project for thirty (30) days to the Boulder Canyon Operations Office in the Lower Colorado regional office effective August 18 through September 18, 2009.
2. Within two weeks of the conclusion of the detail, feedback will be provided to the Resources Management Office pertaining to Complainant's performance during the detail.
3. [S1] or designated management official will act in good faith in making a determination as to whether or not to certify [Complainant] as successfully completing his probationary period no later than October 9, 2009.
4. Should [Complainant] be selected for a vacancy or another permanent position prior to October 9, 2009, it is understood and agreed that [S1] or designated management official will not make the determination regarding probation nor will she in any way take any actions that negatively affect [Complainant's] certification.
5. To notify [Complainant] before a decision to terminate and/or not certify him is made. Further, [Complainant] may voluntarily resign in lieu of termination. [Complainant's] official personnel folder (OPF) and any other documentation shall reflect voluntary resignation.
By letter to the Agency dated November 6, 2009, 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: (1) "act in good faith in making a determination as to whether or not to certify [Complainant] as successfully completing his probationary period;" (2) "notify [Complainant] before a decision to terminate and/or not certify him is made." In its September 13, 2010 Final Agency Decision (FAD), the Agency concluded that the Agency complied with the settlement agreement.
FACTUAL BACKGROUND
The record shows that on or about October 2, 2009, written feedback was provided to S1 at the Boulder Canyon Operations Office (BCOO). That feedback noted the following:
Regarding your request for feedback on [Complainant's] detail to BCOO, we gave him a difficult task and he performed very well. We definitely appreciate his valuable efforts and his teamwork while on the detail. Specific comments include:
� Accepted a challenging and important assignment - was given a difficult task with specific deliverables; task was considered very ambitious and challenging as well as timely to the LC's water accounting program.
� Quick mastery of issues - learned both the overarching issues and specific technical details exceptionally quickly, allowing for valuable analysis, in a limited time.
� Timely - completed deliverables on or ahead of time (weekly reports, final report, and final presentation).
� Worked well with other staff and group leaders - clearly regarded as knowledgeable, intelligent, and pleasant to work with. Independently and appropriately sought expert advice and information gathering.
� Superior work ethic - completely consistent attendance and focus on work duties as well as working long hours to complete the assignments.
� Valuable - produced information useful to LC's water accounting obligations. Final report will be used as an information reference in upcoming policy-related discussions and decision-making.
� Weaknesses - [Complainant] would confirm his written English grammar as a weakness. However, he worked with administrative staff for proofreading support. I considered this minor compared to his technical knowledge, analysis skills, and ability to produce a valuable final report.
On October 8, 2009, S1 sent an email to the Deputy Director, Resource Management Office (HR1) recommended against retaining Complainant. Specifically, S1 stated the following:
In response to your request, I would not recommend certifying that we retain [Complainant] as a permanent employee beyond his 1-year probationary period for the following reasons:
1) He has demonstrated a recurring problem with following directions. He is either unwilling or unable to follow directions.
2) He has serious problems with both oral and written communications skills, both of which are critical to being able to carry out the performance of his duties as a water resources planner. There are issues with English grammar, but also with his critical thinking skills.
3) There are serious concerns about his ability to deal with partners for several reasons which are documented:
a. a) He put our Government-to-Government relationship with the Hopi Tribe at risk within 2 months of being employed with Reclamation;
b. He improperly advised the Hopi Tribe and Hualapai Nation on several matters dealing with 638 contracts.
Please let me know if you need anything else. I have a table prepared which outlines most of the incidents which occurred during the tenure of his employment with Reclamation and many samples of [Complainant's] work products if you would like to see those.
The record shows that, also on October 8, 2009, S1 presented Complainant with a termination letter which reiterated the alleged performance issues set forth in her email to HR1. Complainant claims that he was given no advance notice before the termination decision was made.
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. 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, we find the record devoid of evidence to establish that S1 acted in good faith in making the determination as to whether or not to certify Complainant as successfully completing his probationary period. Implicit in the terms of the settlement agreement which require a good faith determination pertaining to Complainant's probationary term following feedback from Complainant's detail is the expectation that S1 would consider the recommendation that she received from Complainant's detail as part of her decision-making process. However, the record indicates that S1's pre-settlement position regarding Complainant's performance was identical to her October 8, 2009 email to HR1 and her termination letter to Complainant. Moreover, the record is devoid of evidence to conclude that S1 gave any consideration to the glowing recommendation of Complainant's work performance during his 30-day detail. Accordingly, we find insufficient evidence in the record to conclude that S1 exercised good faith in rendering her determination on the issue of Complainant's employment status.
We also conclude that the Agency failed to comply with the requirement that it notify Complainant "before a decision to terminate and/or not certify him is made." The record contains a recommendation regarding termination from S1 to HR1. The October 8, 2009 termination letter is addressed directly to Complainant. The record is devoid of testimonial or documentary evidence to support the conclusion that Complainant was aware of S1's recommendation of termination before notification of the termination decision via letter dated October 8, 2009.1 Accordingly, we conclude that the Agency failed to comply with the terms of its settlement agreement.
EEOC Regulation 29 C.F.R. � 1614.504(c) provides that in the case of noncompliance with a settlement agreement, the Commission may order compliance with the terms of the settlement agreement or reinstatement of the complaint. In this case, the Commission will exercise its discretion to order reinstatement of the complaint, as specified in the ORDER below.
CONCLUSION
Accordingly, the Agency's FAD finding no breach is REVERSED. Complainant's complaint is REMANDED to the Agency for further processing from the point processing ceased in accordance with the ORDER below.
ORDER
Within thirty (30) calendar days from the date this decision becomes final, the Agency is ORDERED to reinstate Complainant's EEO complaint and to resume processing from the point processing ceased. The Agency shall notify Complainant that it has resumed processing his complaint. A copy of the Agency's letter notifying Complainant of the reinstatement must be submitted to the Compliance Officer, 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), 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 (R0610)
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 (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 31, 2012
__________________
Date
1 The termination letter dated October 8, 2009 indicates that termination is effective upon receipt of the letter.
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01-2011-0314
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013