0120073902
03-04-2009
Dell R. Killian, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Dell R. Killian,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120073902
Agency No. CL0302
DECISION
Complainant filed an appeal with this Commission regarding his contention
that the agency violated the terms of the December 11, 2002 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:
(A)(1) The Notice of Performance Deficiency, dated 15 May 02; Notice
of Unacceptable Performance and Assignment of a Performance Improvement
Period, dated 27 Aug 02; and other Memorandums, documents or information
concerning the complainant's performance for the performance periods 01
August 2001 - 31 July 2002 and 01 August 2002 - 9 December 2002 will be
removed from and/or not placed in complainant's Official Personnel Folder
(OPF) or Employee Performance File (EPF), nor will the aforementioned
documents be sent by any means necessary to any future employer of the
complainant without complainant's written consent.
(A)(3) Complainant's official performance rating for the performance year
ending 31 Jul 2002 will remain "Ineligible." Complainant understands
that management, by signing this agreement, does not intend to imply
that they believe complainant's performance was satisfactory or improved
during the period 01 August 2001 - 9 December 2002. Complainant further
understands that if he were to remain in his current position he would
be subject to a possible removal action for unacceptable performance.
By letter to the Commission dated August 22, 2007, complainant alleged
that the agency was in breach of Sections (A)(1) and (A)(3) of the
settlement agreement. Specifically, complainant alleged that his
performance file contained a "negative rating" of "marginal" for the
period ending on July 31, 2002, despite the fact that the agency had
agreed to remove any information concerning his performance during that
rating period from his OPF and/or EPF. Complainant also alleged that
the agency discriminated against him in retaliation for his EEO activity
after the parties signed the December 11, 2002 settlement agreement.
On September 27, 2007, the agency issued a final decision finding no
breach of Section (A)(3) of the settlement agreement. The agency's
decision noted that the agency had been in breach of Section (A)(3) at
the time complainant first alleged that a breach had occurred because
his rating for the period ending July 31, 2002 was listed as "less
than fully successful" in the agency database. However, the agency
decision found no breach because complainant's rating in the database
was changed to reflect "ineligible" in accordance with Section (A)(3)
of the agreement within 35 days of the date complainant had advised
the agency of the breach.1 On October 15, 2007, the agency reviewed
complainant's OPF and found no breach of Section (A)(1).
As an initial matter, we must first address whether complainant's appeal
is properly before the Commission. EEOC Regulation 29 C.F.R � 1614.504(a)
provides that if complainant believes that the agency has failed to comply
with the terms of the settlement agreement, then 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." EEOC Regulation 29 C.F.R � 1614.504(b) further provides
that the agency "shall resolve the matter and respond to the complainant,
in writing." If the agency has not responded to the complainant 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 final decision. Id.
The record reflects that complainant filed the instant appeal without
first notifying the agency's EEO Director of the alleged noncompliance.
Therefore, complainant's appeal was premature at the time of filing.
However, the agency treated complainant's appeal as written notification
of the alleged breach and issued a final decision while complainant's
appeal was pending before the Commission. As a result, we find that
the appeal is currently ripe for review.2
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).
In the instant case, we find that the agency is in substantial compliance
with the settlement agreement. With respect to Section (A)(1) of the
agreement, an EEO Specialist submitted a sworn declaration into the
record confirming that the Notice of Performance Deficiency, dated May 15,
2002; Notice of Unacceptable Performance and Assignment of a Performance
Improvement Period, dated August 27, 2002; and any other documents
concerning complainant's performance for the rating periods of August 1,
2001 through July 31, 2002 and August 1, 2002 through December 9, 2002
were not included in complainant's OPF. The EEO Specialist also indicated
that "[t]here is no evidence in the OPF to suggest that the aforementioned
documents were sent by any means to any of [complainant's] employers."
Regarding Section (A)(3), the record indicates that complainant's rating
for the period ending on July 31, 2002 was initially listed incorrectly
in the agency's database, but the agency remedied its error by changing
the rating to "ineligible" after complainant informed the agency of
its mistake. We note that the record contains a computer "screen shot"
listing complainant's rating as "ineligible" in the agency's database.
Therefore, based on a careful review of the record, we find that the
agency has substantially complied with the agreement.
Finally, to the extent that complainant is asserting on appeal that he has
been subjected to retaliation after he signed the settlement agreement, we
note that ongoing retaliation should be addressed as a separate complaint.
If complainant wishes to pursue these matters further, complainant is
advised to contact an EEO counselor, if he has not already done so.
Accordingly, the agency's decision finding no breach 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
March 4, 2009
Date
1 The agency was unable to determine if Section (A)(1) was breached
in September 2007 because agency officials did not possess a copy of
complainant's OPF at that time. The agency decision noted that agency
officials would make a determination as to whether a breach of Section
(A)(1) occurred at a later date.
2 The agency argues for the first time on appeal that complainant's
appeal should be dismissed because complainant failed to notify the EEO
Director of the breach in a timely manner. However, because the agency
did not raise timeliness as a basis for dismissal in its final decision,
we find that the agency has waived timeliness as a basis for dismissal in
this case. See McGrady v. Health and Human Services, Appeal No. 01985084
(September 4, 2001) (holding that the agency waives timeliness arguments
when not addressed in its final decision).
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0120073902
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120073902