01991068
01-04-2000
James R. Groom, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
James R. Groom v. Department of the Air Force
01991068
January 4, 2000
James R. Groom, )
Complainant, )
)
v. ) Appeal No. 01991068
) 01994392
F. Whitten Peters, ) Agency No. LE1C96010
Acting Secretary, ) LE1C99004
Department of the Air Force, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Complainant filed two timely appeals with this Commission.<1> Appeal
number 01991068, filed November 18, 1998, was from a final agency action
finding that the agency was in compliance with the terms of the two
December 1996 settlement agreements into which the parties entered.
See EEOC Regulation 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.402(a)); 29 C.F.R.
� 1614.504(b); EEOC Order No. 960, as amended. Appeal number 01994392,
filed May 4, 1999, concerned the agency's breach of their December 10,
1996 settlement agreement.
ISSUES PRESENTED
The issues on appeal are whether the agency (1) properly determined that
it did not breach settlement agreements with complainant dated December
3 & 10, 1996 and (2) properly dismissed a second complaint for stating
the same claim that was pending before the agency or Commission.
BACKGROUND
Breach of Settlement Agreements
On March 23, 1998, complainant alleged that the agency was in breach of
their December 3 & 10, 1996 settlement agreements, and requested that the
agency reinstate the formal complaints he filed on July 23, 1996 and
in September 1995. Specifically, complainant alleged that the agency
breached the agreements when it failed to retract the NAF Performance
Evaluation, dated May 30, 1996, from his official personnel folder (OPF)
and Air Force (AF) 971;<2> placed him in a Performance Improvement Period
(PIP); and failed to pay him $20,000 for removing him as Golf Course
Manager a year and fifty four days after the second settlement agreement.
The December 3, 1996 settlement agreement provided, in pertinent part:
3.a. The subject NAF Performance Evaluation, dated May 30, 1996, will
be retracted from your Official Personnel Folder and AF 971.
The December 10, 1996 settlement agreement provided, in pertinent part:
2.b. The agency will not reprise against Mr. Groom for having filed
this EEO complaint. . . .
2.d. If Mr. Groom is terminated for performance based reasons within
12 months from the date of this settlement agreement, the Agency will
pay Mr. Groom twenty thousand dollars ($20,000).
In its May 11, 1998 action, the agency concluded that no breach of
settlement occurred.<3> This appeal followed.
Same Claim Pending
On March 30, 1999, complainant alleged that the agency breached
their December 10, 1996 settlement agreement when it failed to pay
him $20,000, in compliance with Paragraph 2.d. of the agreement, for
demoting him to Assistant Manager approximately fourteen months following
the agreement.<4>
In its action on April 13, 1999, the agency dismissed complainant's
complaint for stating the same claim that was pending before the agency
or Commission. This appeal followed.
ANALYSIS AND FINDINGS
Breach of Settlement Agreements
The Commission has consistently held that settlement agreements are
contracts between complainant and the agency, and 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, 381 (5th Cir. 1984).
On March 23, 1998, complainant alleged that the agency was in breach of
two settlement agreements in which the parties entered. Specifically,
complainant alleged that the agency breached their December 3, 1996
agreement when it failed to retract the NAF Performance Evaluation,
dated May 30, 1996, from his OPF and AF 971. Complainant alleged that
the agency breached the December 10, 1996 agreement when it placed him
in a PIP and failed to pay him $20,000 for removing him as Golf Course
Manager a year and fifty four days after the date of the agreement.
The December 3, 1996 settlement agreement provided, in pertinent part:
3.a. The subject NAF Performance Evaluation, dated May 30, 1996,
will be retracted from your Official Personnel Folder and AF 971.
The December 10, 1996 settlement agreement provided, in pertinent part:
2.b. The agency will not reprise against Mr. Groom for having filed
this EEO complaint. . . .
2.d. If Mr. Groom is terminated for performance based reasons within
12 months from the date of this settlement agreement, the Agency will
pay Mr. Groom twenty thousand dollars ($20,000).
Complainant did not satisfy his burden of proving by a preponderance
of the evidence that the agency breached either of the two settlement
agreements. Farmer v. USPS, EEOC Request No. 05910691 (Aug. 22,
1991). First, the record did not contain objective evidence that the
evaluation remained in complainant's OPF or AF 971 after December 3,
1996. Second, claims of breach of a settlement agreement resulting
from subsequent acts of discrimination, such as reprisal, should be
processed as separate complaints rather than as a breach of settlement.
29 C.F.R. � 1614.504(c); see Nwankpa v. Department of the Army, EEOC
Request No. 05931161 (June 10, 1994). Third, complainant was demoted
approximately two months after the one year period in which the agency
would have had to pay $20,000 for his performance-based removal.
Therefore, the Commission shall affirm the agency's finding of no breach.
Same Claim Pending
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides that the agency shall
dismiss a complaint that states the same claim that is pending before or
has been decided by the agency or Commission.
On March 30, 1999, complainant alleged that the agency breached their
December 10, 1996 settlement agreement when it failed to pay him $20,000
in compliance with Paragraph 2.d. of the agreement.<5> This complaint
states the same claim alleged in Appeal Number 01991068, which is
discussed above. Accordingly, the agency's dismissal is affirmed.
CONCLUSION
It is the decision of the Commission to AFFIRM the agency's finding
of no breach regarding Appeal Number 01991068 and its dismissal of
complainant's complaint regarding Appeal Number 01994392.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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 (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:
Jan. 4, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's Federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2According to complainant, the 1996 Performance Evaluation remained in
his personnel folder at least until November 1997, which is when his
folder was checked. The record did not indicate who checked the folder.
In addition, complainant alleged that Personnel sent the evaluation
to the agency's EEO Director and an EEO Investigator subsequent to the
December 3 settlement agreement.
3According to the agency, the 1996 Performance Evaluation did not remain
in complainant's folder as evidenced by its absence when the agency had
to compile a spreadsheet of the 1995 through 1997 appraisals of more
than 60 employees. Complainant's folder only contained two of the three
appraisals, 1995 and 1997. In addition, the agency alleged that the
complainant provided the EEO Director and Investigator with the 1996
evaluation to support an EEO complaint.
4See Breach of Settlement Agreements Background for pertinent text of
the agreement.
5See Breach of Settlement Agreements Analysis and Findings for text
of agreement.