0120093343
12-17-2009
Pamela S. Van Keuren, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Pamela S. Van Keuren,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120093343
Agency No. ARUSMA08MAR00689
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated July 13, 2009, finding that it was in
compliance with the terms of a May 15, 2009 settlement agreement. See 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The May 15, 2009 settlement agreement provided, in pertinent part,
that the agency would:
3.b. Provide appropriate and reasonable performance objectives to
the Complainant regarding her duties and responsibilities as Business
Manager at the ODIA Gift Shop. This will include any training specifically
required to address changes that have been implemented at the Gift Shop
during the Complainant's period of administrative leave.1
By letter to the agency dated June 12, 2009, complainant alleged that the
agency was in breach of provision 3(b). Specifically, complainant alleged
that the performance standards she received on June 9, 2009, were "wholly
inappropriate and unreasonable." Complainant further alleged that she
was denied access to information regarding the gift shop, its employees
and operations covering the period she was on administrative leave.
Complainant alleged that the agency allowed her first-line supervisor
(S1) "to treat me with open hostility, disrespect, bad faith, and
general pettiness and discourteousness to an extreme degree, in breach
of paragraph 3(b) and the Army's duty of good faith and fair dealing in
its performance of its obligations under the Settlement Agreement."
In response to complainant's allegation of breach, the record contains a
copy of the Personnel Specialist's memorandum for the record dated June 9,
2009. Therein, PS stated that on June 9, 2009, she met with complainant
and S1 "to present and review [complainant's] Performance Standards."
PS further stated "what followed was a three hour grueling ordeal going
over the standards. Every standard was met with a negative remark,
really testing everyone's patience. [Complainant] was very unreasonable
stating that she did not [know] how to do this and she never had to do
that bringing up the worst examples and playing 'devil advocate,' her
words, and demanded for the standards to be changed claiming that the
standards are unacceptable and she feels that the standards are insulting
to her." PS stated that at one point complainant "demanded copies of
other managers' standards, she was told that we do not discuss other
employee standards." PS stated that complainant "was provided with
everything she asks for, copies of schedules, financial information,
websites, and links." Furthermore, PS stated that complainant "did sign
the standards, but disagrees with many of the items in the standards.
[Complainant] was informed by several times that; her performance
standards will not be changed. If she has a problem getting training
to inform [S1], who is her supervisor."
In its July 13, 2009 final decision, the agency found no breach.
The agency determined that complainant's opposition or disagreement
with the performance standards that were issued to her on June 9, 2009,
does not constitute breach of provision 3(b). The agency stated that
complainant "filed her allegation of noncompliance a mere eight days
after she returned to work, and only three days after she received
her performance standards. It is incredible to believe that the
[complainant's] performance standards she received on June 9, 2009,
are 'wholly inappropriate and unreasonable' given the extremely short
amount of time between the issuance of the performance standards and the
date the Appellant filed her allegation of noncompliance." The agency
stated that management has provided complainant with sufficient resources
and information concerning the gift shop in order to give complainant
the opportunity to meet her performance standards and to successfully
reintegrate herself into her position.
Further, in its final decision, the agency found that disputed wording
at issue in provision 3(b) is the term "appropriate and reasonable."
The agency determined that that this term in provision 3(b) "fails for
lack of consideration because the Activity has agreed to provide that
to which you, like all employees, are entitled to receive." The agency
stated that as a result, provision 3(b) was revised to exclude the
words "appropriate and reasonable." . The agency stated that absent the
"vague language," no breach has occurred because complainant had received
her Performance Standards.
Finally, the agency determined that its review of complainant's breach
claim indicated that it constituted a claim that subsequent acts of
discrimination or harassment violated the settlement agreement and that,
pursuant to EEOC regulations 29 C.F.R. � 1614.504(c), complainant's claims
should be treated as a separate claim of discrimination. Additionally,
the agency found that the record showed that complainant initiated
EEO Counselor contact concerning her Performance Standards and being
subjected to harassment by S1.
On appeal, complainant, through her attorney, argues that the Performance
Standards provided to her "are not appropriate and reasonable according
to the legal tests discussed in section A above as well as the Agency's
own guidelines for performance standards contained in Army Regulation
215-3 section 6-5." For instance, complainant argues that according to
the Standards, she is responsible for maintaining "sales revenue constant
based on the past two years data. This standard is inappropriate and
unreasonable because [complainant] has no authority to select inventory
(the inventory buyer reports directly to [complainant's] supervisor, and
[complainant] has no authority over the buyer); and maintaining sales
revenue constant is unreasonable given the vagaries of the economy."
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, the plain meaning rule loses its relevance when a settlement
agreement lacks adequate consideration because such agreements are
unenforceable. See Collins v. United States Postal Service, EEOC
Request No. 05900082 (April 26, 1990) (a settlement agreement that was
not based upon adequate consideration was unenforceable). Generally,
the adequacy or fairness of the consideration in a settlement agreement
is not at issue, as long as some legal detriment is incurred as part
of the bargain. However, when one of the contracting parties incurs no
legal detriment, the settlement agreement will be set aside for lack
of consideration. See MacNair v. United States Postal Service, EEOC
Appeal No. 01964653 (July 1, 1997); Juhola v. Department of the Army,
EEOC Appeal No. 01934032 (June 30, 1994) (citing Terracina v. Department
of Health & Human Service, EEOC Request No. 05910888 (March 11, 1992)).
When applying these principles, the Commission concurs that the first
sentence of provision 3(b) should be voided for lack of consideration.
This clause of provision 3(b) states that the agency promised to provide
complainant "appropriate and reasonable" performance objectives regarding
her duties and responsibilities as Business Manager at the gift shop.
This provides nothing to complainant beyond what she was already entitled
to as an employee of the agency. Therefore, this clause is voided for
lack of consideration, and provision 3(b) is reformed to simply provide
that complainant is entitled to, "any training specifically required
to address changes that have been implemented at the Gift Shop during
the Complainant's period of administrative leave." The reformation of
provision 3(b) does not, however, affect the remainder of the settlement
agreement which resulted in significant benefits to complainant. See,
note 1, supra. Finally, an examination of the record does not support
a finding that the settlement agreement, as reformed, was breached by
the agency.
Moreover, we agree with the agency that complainant's claim that her
Performance Standards were "wholly inappropriate and unreasonable" and
that she was being subjected to harassment by S1 are new claims that
subsequent acts of discrimination violated the settlement agreement,
and are more appropriately treated as new claims of discrimination that
should be processed separately pursuant to EEOC Regulation 29 C.F.R. �
1614.504(c). As noted by the agency in its July 13, 2009 final decision,
and otherwise supported in the record, complainant has filed a new formal
complaint concerning her Performance Standards and being subjected to
harassment by S1, and that these claims are currently being processed.
Accordingly, the agency's finding of no breach of the instant settlement
agreement is AFFIRMED.
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
December 17, 2009
__________________
Date
1 The settlement agreement also provides for the agency to terminate
complainant's administrative leave status and to reinstate her to the
position of Business Manager at the ODIA Gift Shop; temporarily assign an
[ODIA Chief Financial and Business Officer as complainant's first-line
supervisor; withdraw a Colonel's fitness-for-duty order dated April
15, 2009 which would end complainant's fitness-for-duty evaluation;
assure that complainant would not receive any further orders arising
from the March 12, 2008 memorandum issued by the Colonel; certify that
complainant's Official Personnel File and ODIA personnel file do not
contain documents relating to the Colonel's March 12, 2008 order and her
prior complaints; restore complainant's 111.7 hours of "use or lose"
annual leave to her balance; pay complainant's attorney in the amount
of $25,000 in attorney's fees; and pay complainant in the amount of
$2,208.64. These provisions are not at issue in the instant appeal.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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