01983356
10-15-1999
James R. Groom, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency
James R. Groom v. Department of the Air Force
01983356
October 15, 1999
James R. Groom, )
Appellant, )
) Appeal No. 01983356
v. ) Agency No. 96AF0338E
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency )
)
DECISION
INTRODUCTION
On April 27, 1998, appellant filed this appeal with the Commission
alleging that the agency failed to comply with the terms of two settlement
agreements dated December 3, 1996, and December 10, 1996. The agency
in its response stated that it had complied with the terms of the
agreements.
ISSUE PRESENTED
The issue on appeal is whether the agency breached two settlement
agreements.
BACKGROUND
Appellant, the golf course manager at 1st Services Squadron, Langley AFB,
filed a formal EEO complaint on December 29, 1995, alleging discriminated
on the bases of physical/mental disability (stroke leading to right side
weakness/un-coordination and some communication problems) when various
supervisory officers told him that he could retire through Workers'
Compensation and provided him paper work; that he could take disability
or social security retirement and provided him paperwork; when he was
asked to step down from his position and retire; and when he was offered
the position of Pro Shop manager at a reduced salary. The complaint was
accepted for investigation which found no discrimination. Appellant then
requested a hearing before an EEOC Administrative Judge (AJ).
Prior to a hearing, the complaint was resolved through two settlement
agreements. In the first, entered into on December 3, 1996, the
agency agreed to retract appellant's Employee Performance Evaluation
(the appraisal) dated May 30, 1996, from his official personnel file,
and agreed that appellant's next performance appraisal covering the
period September 1996, through June 1997, would be in July 1997, when
a certain supervisor would be the rating official.
Appellant agreed to waive any right to attorney's fees; to withdraw
an EEO complaint he filed on July 23, 1996;<1> and to not litigate or
re-litigate in any forum any claims arising from the actions involved
in the complaint.
In the second agreement dated December 10, 1996, the agency agreed to
pay appellant the sum of $7,500; ensure that the reviewer of appellant's
performance appraisals would be someone senior in the chain of command
during the tenure of one of the supervisory officers named in the
complaint; ensure that a certain manager tasked appellant and rated him on
those tasks; not reprise against appellant for filing the EEO complaint;
and pay appellant the sum of $25,000 if appellant was terminated within
6 months of the date of the agreement for performance based reasons,
or pay appellant the sum of $20,000 if he was terminated for performance
based reasons within 12 months of that date. Appellant agreed to withdraw
his complaint and request for an EEO hearing; waive his right to pursue
administrative action in any forum; and not file other complaints or
charges against the agency based upon issues arising from this complaint.
On March 23, 1998, appellant informed the agency"s chief EEO counselor
that breaches had occurred. Appellant alleged that his performance
appraisal was not removed from his official file; that the appraisal
was sent to an EEO complaint investigator;<2> and that a Performance
Improvement Plan (PIP) initiated for him on August 27, 1997, was extended
after its 90 day termination date in order to circumvent the contingent
payment terms in the December 10, 1996, agreement.
In his brief, appellant contends the breaches became apparent when his
attorney was reviewing his records at the agency's Office of Complaints
Investigation (OCI) meeting while filing appellant's complaints of
reprisals.<3> Appellant alleges that on October 27, 1997, the personnel
staffing specialist sent a packet containing the appraisal to the Chief
EEO Director<4> and to an OCI investigator as part of her investigation
into appellant's additional complaints. Appellant states that a review
of his records at the Human Resource Office as late as November 1997,
showed the appraisal as being a part of his official file.
Appellant contends the agreements were also breached when he was placed on
the PIP. Appellant claims the PIP was extended 45 days beyond its 90 day
termination in order to circumvent the contingent payment stipulations.
On January 17, 1998, thirteen months after signing the settlement
agreements, the agency issued a Proposed Notice of Removal.
Appellant contends the agency further breached the agreement by taking
reprisal action against him as evidenced by five new complaints he
filed against the agency based on reprisal. Appellant asks to have the
agreements rescinded so that he can reinstate his complaint.
The agency argues there was no breach and that there is no evidence
that appellant's 1996 performance appraisal was still in his file.
The agency contends that the 1996 appraisal sent to the Chief EEO Director
and investigator by the personnel staffing specialist was given to the
specialist by appellant himself when he attempted to grieve the poor
1997 rating.<5>
The agency denies that the 1996 appraisal was in the personnel file in
November 1997, and states that while investigating appellant's November
1997, complaint regarding his 1997 appraisal, the OCI investigator
requested that 1SVS/SVH submit all performance appraisals for all
golf course employees for the years 1995, 1996, and 1997. 1SVS/SVH
submitted a spreadsheet of each employee's name and rating for each year.
Only information for the years 1995 and 1997 was available for appellant
because the 1996 appraisal was not in his file.
The agency also argues that extending appellant's PIP beyond the
agreement's 12 month anniversary did not breached the agreement and denies
any intent to avoid the contingent payment.<6> The agency states that
management identified areas of appellant's work that needed improvement
prior to the December 10, 1996, agreement, and argues that the agency did
not forfeit its rights under that agreement to counsel appellant about
his work or place him on a PIP if needed. The agency contends the PIP
was extended an additional 45 days to give appellant additional time to
improve his performance.
ANALYSIS AND FINDINGS
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. It
further provides that if the complainant believes that the agency has
failed to comply with the terms of a settlement agreement or final
decision, 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.
The question of whether a breach has occurred is one of contract
interpretation. The Commission has regularly held that a settlement
agreement between an EEO complainant and a federal agency is a
contract subject to ordinary principles of contract interpretation and
construction. Papac v. Department of Veterans Affairs, EEOC Request
No. 05910808 (December 12, 1991); Shuman v. Department of the Navy,
EEOC Request No. 05900744 (July 20, 1990). In interpreting settlement
agreements, the Commission has applied the contract principle known as
the "plain meaning rule" which holds that where a writing is unambiguous
on its face, its meaning is determined from the four corners of the
instrument without resort to extrinsic evidence. Smith v. Defense
Logistics Agency, EEOC Appeal No. 01913570 (December 2, 1991).
The Commission finds persuasive the agency's explanation regarding the
source of the 1996 appraisal sent to the EEO Director and investigator,
and therefore, finds no breach.
The Commission also finds no breach when the agency placed appellant on
a PIP or extended that PIP. Nothing in the language of either agreement
prevented the agency from so counseling appellant or for exacting measures
to improve his performance. The Commission notes that if the agency was
in fact attempting to circumvent the contingent payment clause, the Judge
Advocate's Office would not have offered appellant $20,000 to resign on
December 8, 1997, two days before the agreement anniversary date.
The Commission finds appellant's reasoning that the agency reprised
against him as evidenced by his five complaints of reprisal circular,
and is not persuaded by this argument.
CONCLUSION
Accordingly, the Commission finds that the agency did not breach the
two settlement agreements.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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
Oct. 15, 1999
________________________ _______________________
DATE Carlton Haddon, Acting Director
Office of Federal Operations
1 The record contains no information relating to a formal EEO complaint
dated July 23, 1996.
2 Appellant filed an EEO complaint dated November 11, 1997, based on
physical/mental disability and reprisal for prior EEO activity when he
received a poor rating on his 1997 performance evaluation.
3 Appellant has filed five complaints based on reprisal.
4 Prior to filing a complaint with the agency, appellant attempted to
grieve his poor performance appraisal through the local 1 Service Human
Resource Office 1SVS/SVH. The personnel staffing specialist for 1SVS/SVH
informed appellant that his complaint should be handled through the
local EEO office because he was alleging discrimination and reprisal.
Accordingly, she forwarded appellant's complaint to the Chief EEO
counselor and sent a copy to appellant.
5 The agency argues that appellant's representative believes the appraisal
came from 1SVS/SVH because the documents and letters accompanying it
carried the 1SVS/SVH date mark in the corner. The agency explained that
all documents received by 1SVS/SVH are so marked. Documents forwarded
to another office, such as the EEO Director, are attached to a 1SVS/SVH
cover letter. The agency argues that the packet received by the Director
and appellant contained the documents given to the personnel staffing
specialist by appellant as proof of reprisal when he attempted to grieve
the 1997 appraisal. The documents were stamped with the 1SVS/SVH date
mark and attached to a 1SVS/SVH cover letter.
6 Appellant states that on December 8, 1997, the staff Judge Advocate's
Office offered him $20,000 if he would resign. Appellant states he
rejected the offer because there were no causes or poor performances
noted to justify it.