James R. Groom, Appellant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency

Equal Employment Opportunity CommissionOct 15, 1999
01983356 (E.E.O.C. Oct. 15, 1999)

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.