0120070196
06-26-2007
Elvira M. Robinson, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Elvira M. Robinson,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120070196
Agency No. ARIMASW06JAN00118
DECISION
JURISDICTION
Complainant filed a timely appeal with this Commission after the agency
failed to respond within 30 days of her notice of breach of the parties'
settlement agreement. The parties entered a settlement agreement on June
12, 2006. This appeal is accepted pursuant to 29 C.F.R. � 1614.402 and
29 C.F.R. � 1614.504(b).
The settlement agreement provides, in pertinent part, that:
(1) The Respondent Agency through DLIFLC Civil Personnel Advisory
Center will issue a new Performance Appraisal to replace the Performance
Appraisal previously issued to complainant on December 15, 2005.
The new appraisal will note a "Level 1" instead of "Level 2." This new
Performance Appraisal will be for the same rating period and cover the
same number of days as Performance Appraisal issued December 15, 2005.
The agency will provide a new Performance Appraisal no later than August
5, 2006.
By letter to the agency dated August 30, 2006, complainant alleged that
the agency was in breach of the settlement agreement because it failed
to provide the revised performance appraisal by the date specified in
the agreement. By a second letter dated October 5, 2006, complainant
notified the agency that the performance appraisal issued as a result of
the settlement did not comply with the terms of the parties' agreement
and she requested that the agency implement its terms. Specifically,
complainant alleged that the agency revised its rating from a Level 2
(Satisfactory) to Level 1 (Excellent), but revised the comments about
her performance to state, "Demonstrated aggressive and challenging
demeanor."1
The agency did not respond to complainant's notice of breach within the
time allotted by our regulations and she, in turn, filed this appeal.
29 C.F.R. �1614.504(b). On appeal, the agency submitted arguments stating
that the issuance of the performance appraisal pursuant to the settlement
agreement was delayed because of the absence of the Labor Counselor and
the Garrison Commander. The agency contends that complainant alleged a
breach of terms not specifically set forth in the agreement and that the
parties did not contemplate that the original comments would remain in
the performance appraisal. In addition, the agency argues that because
the terms required a "new" performance appraisal, this would also include
new comments, new raters and new dates.
Under our regulations, 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. EEOC Regulation 29 C.F.R. � 1614.504(a).
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, according to the plain language of the settlement
agreement, the parties contemplated that the agency would re-issue a
performance appraisal in place of the one at issue in complainant's
complaint. By its explicit terms, the agency agreed "to replace the
Performance Appraisal previously issued to complainant on December 15,
2005." The agency also agreed that the replacement appraisal "will be for
the same rating period and cover the same number of days." Therefore,
the agency's claim that the appraisal would be new, with new dates and
new raters is not consistent with the plain language of the agreement.
In addition, according to the plain language of the agreement, the
parties also intended for the appraisal to reflect an excellent rating
as indicated by a Level 1 designation. The agency complied with this
provision by indicating the Level 1 rating, but changed the appraisal
by adding new comments stating that complainant "demonstrated aggressive
and challenging demeanor." We conclude based on the plain language of the
agreement that the parties intended the appraisal to stay the same with
the exception of the numerical rating. Thus, the Commission concludes
that the agency's change to the written comments is in breach of the
settlement agreement.
The Commission concludes that the agency's delayed issuance of the
performance appraisal by approximately one month under the terms of the
settlement agreement is a de minimus violation and we find that the agency
substantially complied with the time limit. Per complainant's request
that the agency carry out the provisions of the settlement agreement,
the Commission will require specific performance as set forth in the
order below.
CONCLUSION
Based on the foregoing discussion, the Commission concludes that the
agency's performance appraisal does not meet the parties' intention as
set forth in the settlement agreement and the agency is in breach of
that agreement. Accordingly, we remand this matter to the agency for
further action set forth in the Order below.
ORDER
The agency is ordered to re-issue the subject performance appraisal within
30 days of the date this order becomes final, with a change indicating
a Level 1 rating. The performance appraisal in all other respects will
remain the same as the Performance Appraisal issued on December 15,
2005, in accordance with the parties settlement agreement.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
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 (R0900)
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 (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
___06/26/07_______________
Date
1 In the prior appraisal, the agency stated in written comments
that complainant: "Displays professional commitment to the mission;
Demonstrates genuine concern for health and welfare of subordinates;
Exhibits high standards of loyalty and integrity." Report of Investigation
(ROI) at 20.
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0120070196
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070196