01985135_r
12-22-1999
Steven A. Tomei, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Steven A. Tomei, )
Complainant, )
)
v. ) Appeal No. 01985135
) Agency No. XQ97031
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
)
DECISION
Complainant appeals to the Commission for a determination as to whether
the agency has complied with the terms of a settlement agreement which
the parties entered into. (see 64 Fed Reg. 37,644, 37,660 (1999)
(to be codified and hereinafter cited as 29 C.F.R. �1614.504(b)); EEOC
Order No. 960, as amended.<1>
ISSUE PRESENTED
The issue on appeal is whether the agency breached the settlement
agreement.
BACKGROUND
On June 18, 1997, complainant filed a formal EEO complaint wherein he
alleged that he was subjected to discriminatory harassment on the bases
of his physical disability (epilepsy). The complaint was resolved by
a settlement agreement entered into on August 28, 1997. The agreement
stated in relevant part:
1. If this Agreement is agreed to and signed by August 28, 1997, the
Agency will fund and begin work to provide padding to complainant's
immediate work area in the mail room, including the floor and table
edges, by October 1, 1997, subject to the schedule of the private company
providing the labor to complete the padding.
2. To provide disability awareness training, including awareness of
epilepsy and other disabilities, to managers and supervisors. This
training will include the role of the Agency Disability Program Manager
and the requirement to attempt reasonable accommodation. This training
will be provided by an EEO professional and/or other professional
knowledgeable in disabilities law no later than March 30, 1998.
3. At Complainant's request, the Agency agrees to not discuss or provide
information on disability retirement directly to Complainant until such
time as he requests such information on his own.
4. To refrain from referring to Complainant's seizures as �grand mal�
seizures unless a licensed physician concurs that such seizures are in
fact grand mal seizures.
5. To ensure that the Agency and its supervisors do not discriminate
against Complainant on the basis of Complainant's disability.
8. The Complainant understands and agrees that any claimed violation,
breach or failure to perform any of the commitments described in this
Agreement by the Agency shall be raised in writing within 30 calendar
days of the date the complainant knew or should have known of the alleged
noncompliance for further processing.
By letter dated May 21, 1998, complainant's representative informed the
agency that the settlement agreement was breached when on May 7, 1998,
complainant's supervisor presented complainant with an adverse first
employee performance counseling session. The letter mentioned that the
performance counseling session occurred after complainant's supervisor
was notified by complainant and complainant's physician in a letter
dated March 16, 1998, that new medications would be built up through
the mid-April 1998 time frame, during which time altered frequency of
seizures must be expected. Complainant's representative maintained that
the adverse performance counseling session was discrimination against
complainant based on his physical disability.
On June 8, 1998, complainant filed an appeal with the Commission.
Complainant noted that the agency had not contacted his representative in
order to resolve the matter. In a statement in support of his appeal,
complainant states that at the counseling session, his supervisor
pointed out all of his faults and mistakes in the write-up and told
him he would be evaluated every Friday for the next four weeks.
Complainant lists several other incidents that occurred before and
after the counseling session. Complainant notes that he experienced
a seizure at work in March 1998, and subsequently he was told be his
supervisor that he could not return to work unless he received a written
release from his physician. According to complainant, in June 1998,
his supervisor gave him a verbal warning that he would be placed on a
performance improvement plan and is subject to removal within 90 days
of an unsatisfactory rating. Complainant acknowledges that he has
not received anything in writing about being placed on a performance
improvement plan. Complainant further claims that his supervisor is
now mentioning disability retirement again. In conclusion, complainant
argues that he has received disparate treatment, been placed under duress,
and has been refused reasonable accommodation.
In response, the agency asserts that the individual acting as
complainant's representative has not established that he is indeed
his representative. The agency maintains that the individual at
issue, the president of complainant's bargaining unit, was not
designated as complainant's representative on or after May 7, 1998.
The agency further claims that complainant failed to comply with the
notice requirement of paragraph eight of the settlement agreement.
According to the agency, the letter dated May 21, 1998, alleging breach
can not be considered notice because it was signed by the president of
complainant's bargaining unit, and this individual has not been designated
as complainant's representative. The agency notes that it was claimed
that paragraph five of the agreement was breached. The agency argues
that it had a pre-existing duty not to discriminate against complainant,
and that this paragraph was merely intended to reaffirm that duty.
According to the agency, paragraph five did not create any greater
rights for complainant. The agency maintains that complainant's claim
should be treated as a separate issue of discrimination, processed as
a new complaint, and should not serve as the basis for a claim of a
settlement breach. With regard to whether the employee performance
counseling session constituted a breach of the agreement, the agency
asserts that no breach occurred as counseling regarding one's inability
or ability to perform essential functions of the position is not, in
and of itself, discriminatory. As for the claim that complainant's
supervisor has mentioned disability retirement again, the agency
asserts that the appeal does not specify a date when this occurred.
The agency argues that this claim also fails because there was no notice
of breach as required under paragraph 8. Finally, the agency submits a
copy of a memorandum dated June 30, 1998, signed by complainant and an
agency employee in which the employee states that complainant requested
information regarding disability retirement on June 30, 1998.
ANALYSIS AND FINDINGS
Volume 64 Fed Reg. 37,644, 37,660 (1999) (to be codified and hereinafter
cited as 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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
Fed Reg. 37,644, 37,660 (1999) (to be codified and hereinafter cited as 29
C.F.R. �1614.504(b)) provides that the agency shall resolve the matter and
respond to the complainant, in writing. If the agency has not responded
to the complainant, in writing, or if the complainant is not satisfied
with the agency's attempt to resolve the matter, the complainant may
appeal to the Commission for a determination as to whether the agency
has complied with the terms of the settlement agreement or action.
The complainant may file such an appeal 35 days after he or she has served
the agency with the allegations of noncompliance, but must file an appeal
within 30 days of his or her receipt of an agency's determination.
The Commission has consistently held that settlement agreements are
contracts between complainant and the agency, and 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
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, 381 (5th Cir. 1984).
Initially, we note that complainant prematurely filed his appeal with the
Commission. Complainant notified the agency of his claim of noncompliance
in his letter dated May 21, 1998; however, complainant filed an appeal
with the Commission on June 8, 1998, less than a month after the agency
was informed of his allegation of noncompliance. Complainant should
have afforded the agency 35 days to render a determination before
filing his appeal. In light of the fact that the agency has submitted
a comprehensive response to the instant appeal and, clearly, more than
35 days have now passed, we find that the present record is sufficient
for a determination of complainant's noncompliance claim.
In the instant matter, we reject the agency's assertions that the
president of complainant's bargaining unit has not been designated to
represent complainant or that it was not properly placed on notice
of the claims of noncompliance. By letter dated March 19, 1998,
complainant stated that AFGE Local 2723 is authorized to represent him
as of March 10, 1998, until further notice. Complainant claimed that
the agency breached the settlement agreement on May 7, 1998, by giving
him a document called a performance counseling session that pointed
out all of his faults and mistakes. Complainant maintains that this
incident constituted a breach of the fifth provision of the agreement.
The relevant provision states that the agency agrees to ensure that the
agency and its supervisors do not discriminate against complainant on
the basis of complainant's disability. 64 Fed. Reg. 37,644, 37,660
(1990) (to be codified and hereinafter cited as 29 C.F.R. �1614.504(c))
provides that allegations that subsequent acts of discrimination violate
a settlement agreement shall be processed as separate complaints under 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter cited as
29 C.F.R. �1614.106), rather than as a breach of a settlement agreement.
We find that the claim concerning the employee performance counseling
session form concerns a subsequent act and thus constitutes a new
allegation of discrimination. Complainant is advised that he should
promptly contact an EEO Counselor if he wishes to pursue this claim
through the EEO process.
With regard to the apparent claim of breach concerning complainant's
supervisor mentioning disability retirement, we note that on appeal,
complainant did not specifically describe the context in which his
supervisor mentioned disability retirement and further, no specific
date was provided with regard to the incident. We note that an agency
memorandum indicates that complainant requested information about
disability retirement on June 30, 1998. We find that complainant has
not submitted sufficient evidence to establish that provision three of
the settlement agreement was breached.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
December 22, 1999
____________________________
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,
and the agency on:
_______________ __________________________
Date Equal Employment Assistant
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.