James R. Holland, Complainant,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMay 12, 2009
0120090895 (E.E.O.C. May. 12, 2009)

0120090895

05-12-2009

James R. Holland, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.


James R. Holland,

Complainant,

v.

Dr. Donald C. Winter,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120090895

Agency No. 05-00019-00420

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated January 8, 2008, finding that it

was in compliance with the terms of the November 14, 2006 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:

Complainant has already made application for the career rotational Science

and Engineer Program for Eglin and Hurlbert Air Force Bases. ...[T]he

Navy will not interfere, directly or indirectly, with complainant's

participation in the program, including but not limited to the ultimate

acceptance of a job through that program. Additionally, the complainant

will pursue other Federal Government employment that he considers

acceptable in his professional field. Complainant will provide NAVAIR

Counsel, AIR-11.4, quarterly e-mails showing ...all other job search

efforts, if he has made any, other than the career rotational program.

Management officials within NAVAIR AIR 4.4 will not provide negative

information to the rotational program or potential employers, thorough

either formal or informal channels.

By letter to the agency dated July 9, 2008, complainant alleged that

the agency was in breach of the settlement agreement. Specifically, he

alleged that agency management officials provided negative information

to his rotational program and potential employers.

Complainant was employed in a managerial position performing financial

duties with the Joint Oil Analysis Program (JOAP), Technical Support

Center (TSC). In this job, he worked with other military agencies.

D.M., who was with NAVAIR AIR 4.4, served as the agency representative

to the JOAP Executive Committee prior to the Fall of 2008. In this role,

D.M. had some oversight of complainant's duties, including input into

his performance appraisals. E.T.U. Declaration. Thereafter, it appears

D.M.'s duties properly included some ongoing additional involvement.

Complainant provided a number of examples of D.M. communicating to

people fault with complainant's performance and ability to properly do

his job.

In its January 8, 2009 FAD, the agency concluded that it did not breach

the settlement agreement. Focusing on two e-mails by D.M., the FAD found

one was sent to a limited number of people and did not contain negative

information, and the second e-mail did not provide negative information

formally or informally to complainant's rotational program or potential

employers.

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).

On appeal, complainant counters that while the agency avers it did not

provide negative information to the United States Air Force Career

rotational program, it breached the settlement agreement because it

provided it to others, who were potential employers. The meaning of the

language in the settlement agreement that negative information will not

be provided to the rotational program is unclear, and we find complainant

now concedes this was not done. We also find that complainant has not

shown the negative information was supplied to potential employers.

While D.M. communicated negative information about complainant's

performance and ability to do his job to people, complainant has not

shown it was not done in the context of a job search. Rather, it was

done in the context of D.M.'s oversight role. Complainant's argument

that the various services he worked with were potential employers,

and hence the settlement agreement prohibited D.M. from communicating

anything negative to them (even in his oversight role of complainant's

work) is unpersuasive. To a lesser extent, complainant discussed

negative information about him raised by others, but again he did not

show it was provided to potential employers, within the meaning of the

settlement agreement.

The settlement agreement provides that during complainant's remaining

tenure with JOAP-TSC, if he has any complaint against the Navy or a

Navy employee, he will initiate or seek corrective action through the

Air Force chain of command. Complainant argues that the settlement

agreement is invalid because this incorrectly required him to complain

to the Air Force when the Navy was responsible. We find this procedural

issue does not invalidate the settlement agreement. Complainant still

had an appropriate avenue to allege breach, as evidenced by the fact

that the breach claim was processed by the Navy, which issued a FAD

finding no breach.

Complainant also argues on appeal that the agency breached a prior

second settlement agreement, dated February 15, 2000. This matter

is not before us. In his July 9, 2008, notice of breach, complainant

alleged the breach of November 14, 2006 settlement agreement, and did

not allege breach of the earlier one. The record contains documentation

that by e-mails dated July 28, 2008, and September 11, 2008, complainant

alleged alternatively to a Navy EEO counselor and what appears to be an

Air Force EEO official that both settlement agreements were breached.

The e-mails, however, did not state the date of the earlier settlement,

discuss any of its terms, or specifically explain which provisions were

breached. The FAD did not rule on the breach of the February 15, 2000,

settlement agreement. There is insufficient information in the record

to rule on this matter.1

Throughout the processing of his breach claim, including his notice of

breach, complainant alleged that various agency actions were reprisal

for EEO activity. His allegation that subsequent acts of reprisal

discrimination violated a settlement agreement should have been handled

as a request for counseling on a discrimination claim. Cf. 29 C.F.R. �

1614.504(c). On remand, the agency shall treat the August 3, 2008,

notice of breach, and related follow up contacts with the EEO office,

as a request for EEO counseling, and counsel complainant and process

the matter in accordance with 29 C.F.R. � 1614.105(b)(1) et seq.

ORDER

The agency shall treat the July 9, 2008, notice of breach, and related

follow up contacts with the EEO office, as a request for EEO counseling,

and counsel complainant and process the matter in accordance with 29

C.F.R. � 1614.105(b)(1) et seq.2 The agency shall acknowledge to the

complainant that it has received his request for counseling within thirty

(30) calendar days of the date this decision becomes final.

A copy of the agency's letter of acknowledgment to complainant must be

sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

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 77960, Washington,

DC 20013. 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 (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

May 12, 2009

__________________

Date

1 If complainant wishes to separately allege breach of this settlement

agreement, he should contact the agency to do so as instructed in the

settlement agreement, or contact the relevant agency EEO Director.

Complainant is advised that to the extent he is alleging acts of

reprisal subsequent to the settlement agreement constituted breach,

such allegations should be processed with the matters remanded in the

order below. 29 C.F.R. � 1614.504(c).

2 If necessary, the agency EEO office shall coordinate the Air Force

EEO office to ensure that complainant's claims are being processed by

the correct agency or agencies.

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0120090895

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120090895