01A12916_r
09-16-2002
Charlie Strickland, Jr., Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Charlie Strickland, Jr. v. Department of the Navy
01A12916
September 16, 2002
.
Charlie Strickland, Jr.,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A12916
Agency Nos. DON FY95-63126-022
DON FY97-63126-001
DON FY97-63126-007
DON FY97-63126-012
DON FY97-63126-016
DON FY98-69232-020
DON FY99-69232-018
DON FY99-69232-021
DON FY00-69232-006
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated February 20, 2001, finding that
it was in compliance with the terms of the April 18, 2000 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.
The settlement agreement provided, in pertinent part, that:
(b) The Agency agrees to the following:
(1) Pay the complainant and his attorney the sum total of $27,500.
The exact amount to be paid to each individual party will be identified
on a separate document.
(2) The Head of the Security Department will meet with the Complainant
and the complainant's first level supervisor for purposes of discussing
and agreeing on cooperative efforts and expectations of the complainant
as they relate to the complainant's position as a Crime Prevention
Specialist within the Crime Prevention Division. Such expectations and
support will be committed to writing within thirty days of the signing
of the Agreement.
(3) The Head of the Security Department will meet with both the
complainant and the Chief of Police to discuss how the complainant's
function as a Crime Prevention Specialist will interact with the Police
Division. Any agreements reached, as a result of this meeting will be
put in writing within thirty days of the meeting and distributed to all
appropriate parties.
(4) The Assistant Head of the Security Department (Complainant's first
level supervisor) will meet with the Complainant to discuss any overtime
requests and approval, as well as the appropriate procedures for such
requests.
(5) The Head of the Security Department agrees to conduct meetings with
the Crime Prevention Staff, on a monthly basis, for purposes of discussing
program expectations and providing appropriate guidance.
(7) To acknowledge its obligation under Title VII of the Civil Rights
Act of 1964, as amended, to provide Complainant with a work place free
of discrimination and not to take reprisal action against Complainant for
filing the subject complaints concerning the matters discussed therein.
(8) To provide the Complainant a departmental badge (flat wallet style)
within sixty days of the signing of the Agreement.
By letter dated September 14, 2000, complainant claimed that the
agency breached the April 18, 2000 settlement agreement. Specifically,
complainant makes the following claims of breach:
Provision b(2) when the Head of the Security Department did not meet
with complainant and his first level supervisor to discuss cooperative
efforts and expectations of complainant as they relate to his Crime
Prevention Specialist position;
Provision b(3) when the Head of the Security Department did not meet with
complainant and the Chief of Police to discuss how complainant's function
as a Crime Prevention Specialist will interact with the Police Division;
Provision b(4) when his first level supervisor failed to properly assign
complainant's overtime requests while other members of the department
were working overtime;
Provision b(5) when the Head of the Security Department did not meet
with complainant and members of the Crime Prevention Unit on a monthly
basis for the purposes of discussing program expectations;
Provision b(7) the Security Department failed to provide complainant a
workplace free of discrimination; and
Provision b(8) when the Head of the Security Department failed to provide
a departmental badge within sixty days of the signing of the agreement.
Further, complainant claims that the agency did not follow the regulations
concerning cash awards; that the agency would not meet to discuss
complainant's concerns regarding the working relationship between the
Crime Prevention Unit and his first level supervisor; that the Head of
the Security Department failed to provide a policy of non-discrimination
and treat complainant like other employees; that the agency did not
give complainant an award due to his prior EEO complaints; and that a
named agency employee was appointed to the lead position in the Crime
Prevention Unit while complainant met the requirement for coverage but
was not provided an opportunity.
In its February 20, 2001 decision, the agency concluded that based on an
inquiry by management, the agency was in compliance with the April 18,
2000 settlement agreement.
Regarding provision b(2), the agency determined that complainant's
supervisor stated that he spoke with complainant on a number of occasions
wherein complainant �expressed his views on �what he thought he should
be doing' and that complainant's Performance Evaluation itself serves
as the written document which identifies management's expectations.
Regarding provision b(3), the agency stated that the Deputy Director of
Force Protection met with complainant on several occasions concerning the
interactions between the Crime Prevention Unit and the Police Division.
Management noted that the Deputy Director has not apparently met with
complainant to discuss the specific purpose of this provision but
argued that the meetings with the Deputy Director have served to meet
the specific terms of the subject provision.
With respect to provision b(4), the agency found that the provision
does not state that such requests will be approved and that there was
no evidence that complainant was denied overtime while other members of
his unit received overtime.
Regarding provision b(5), management concluded that complainant's
supervisor and Deputy Director met with complainant and the Crime
Prevention Unit on a number of occasions and that the meetings addressed
program emphasis, how the employees are performing, and apparent internal
tension within the unit.
Regarding provision b(7), management concluded that complainant's
claim appears to stem from an incident that occurred during one evening
when the Crime Prevention Unit was ordered from the scene of a police
surveillance. Management argued that the whole unit was involved and
that complainant's claim cannot be considered a breach of settlement.
Management stated �no terms of any agreement can override the rights
of others to exercise their rights of expression free and unencumbered.
An employee who chooses to disagree with you on any matter relating to the
work environment is free to such expression.� Further, management stated
�other than this incident, no specific �attack� by any employee has been
cited to support your contention of a breach relative to this section.�
Regarding provision b(8), management concluded that while the badges
were not received within the sixty days specified in the agreement, two
sets of badges for each member of the three-person unit were received.
Management further concluded that there is no provision that complainant
must personally approve the design of the badge.
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 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).
Provisions b(2), b(3), and b(5)
The Commission determines that by the agency's own admission, the agency
has not complied with provisions b(2), b(3), and b(5) of the agreement.
Regarding provision b(2), the agency stated that even though complainant's
supervisor had several discussions with complainant wherein complainant
�expressed his views on �what he thought he should be doing' and
that complainant's Performance Evaluation itself serves as the written
document which identifies management's expectations. However, provision
b(2) indicates that the Head of the Security Department will meet with
complainant and his first level supervisor for purposes of discussing
and agreeing on cooperative efforts and expectations of complainant as
they relate to his position as a Crime Prevention Specialist within the
Crime Prevention Division. Further, the provision provides that such
expectations and support will be committed to writing within thirty days
of the signing of the agreement.
With respect to provision b(3), the agency stated that although Deputy
Director of Force Protection has not apparently met with complainant
and Chief of Police to discuss the specific purpose of this provision,
the Deputy Director of Force met with complainant several occasions
concerning the interactions between the Crime Prevention Unit and the
Police Division. Provision b(3), however, expressly provides the Head
of the Security Department will meet with both complainant and the Chief
of Police to discuss how complainant's function as a Crime Prevention
Specialist will interact with the Police Division and that any agreements
reached as a result of the meeting will be put in writing within thirty
days of the meeting.
Regarding provision b(5), the agency stated that complainant's supervisor
and Deputy Director met with complainant and the Crime Prevention Unit on
a number of occasions and that the meetings addressed program emphasis,
how the employees are performing, and apparent internal tension within the
unit. However, the provision b(5) indicates that the Head of the Security
Department agreed to conduct meetings with the Crime Prevention Staff
on a monthly basis for the purposes of discussing program expectations
and providing appropriate guidance.
Accordingly, the Commission finds that the agency breached provisions
b(2), b(3), and b(5).
Provision b(4)
The agency noted that the provision did not provide that overtime would
be approved to complainant at his request and that and that there was
no evidence that complainant was denied overtime while other members
of his unit received overtime. Therefore, the Commission finds that
there is no evidence in the record to support complainant's claim that
the agency breached provision b(4) of the settlement agreement
Provision b(7)
We note that the record reflects that complainant claimed that the agency
breached provision (7) of the settlement agreement by engaging in acts
of retaliation against him. Pursuant to 29 C.F.R. � 1614.504(c), a claim
that a subsequent acts of discrimination violates a settlement agreement
shall be processed as a separate EEO complaint, rather than as a breach
of settlement under 29 C.F.R. � 1614.504. Complainant alleged that
the agency breached the terms of the agreement when he was denied cash
awards, was not provided an opportunity to the Lead position, and was not
treated like other employees as a result of his previous EEO complaint.
If complainant wishes to pursue these claims as a new complaint of
discrimination he is advised to contact an EEO Counselor thereon.
Provision b(8)
The record reveals that the agency provided complainant with a
departmental badge (flat wallet style) over 60 days after the agreement
was signed. The Commission notes that while this provision specifies
performance within a specific time frame of 60 calendar days, we have
held that the failure to satisfy a time frame specified in a settlement
agreement does not prevent a finding of substantial compliance of its
terms, especially when all required actions were subsequently completed.
Lazarte v. Department of the Interior, EEOC Appeal No. 01954274 (April
25, 1996). The Commission determines that the agency's completion of
the required actions in provision b(8) substantially complied with the
terms of this provision.
In findings of breach, the Commission may order the agency to reinstate
the underlying complaint, or to enforce the terms of the agreement.
The Commission finds that enforcement of the settlement agreement, given
the specific circumstances of this case, is the more appropriate remedy.
Accordingly, the agency's finding of no breach of provisions b(4), b(7),
and b(8) is AFFIRMED. The agency's dismissal of provisions b(2), b(3),
and b(5) is REVERSED, and provisions b(2), b(3), and b(5) are REMANDED
in accordance with the Order below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency is ORDERED to under the following actions:
1. The agency shall implement provision b(2) of the settlement agreement
by having the Head of the Security Department meet with the Complainant
and the complainant's first level supervisor for purposes of discussing
and agreeing on cooperative efforts and expectations of the complainant
as they relate to the complainant's position as a Crime Prevention
Specialist within the Crime Prevention Division. Such expectations and
support will be committed to writing within thirty days of the signing
of the Agreement.
2. The agency shall implement provision b(3) of the settlement
agreement by having the Head of the Security Department meet with both
the complainant and the Chief of Police to discuss how the complainant's
function as a Crime Prevention Specialist will interact with the Police
Division. Any agreements reached, as a result of this meeting will be
put in writing within thirty days of the meeting and distributed to all
appropriate parties.
3. The agency shall implement provision b(5) of the settlement agreement
by having the Head of the Security Department agree to conduct meetings
with the Crime Prevention Staff, on a monthly basis, for purposes of
discussing program expectations and providing appropriate guidance.
The agency shall notify complainant that the subject provisions b(2),
b(3), and b(5) are being implemented. A copy of the agency's notice to
complainant must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 (M0701)
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 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 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 16, 2002
__________________
Date