0120114227
11-06-2012
Kenneth K. Price, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Kenneth K. Price,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120114227
Agency Nos. 09-4523A-02620
10-4523A-00859
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated October 20, 2011, finding that it was in compliance with the terms of a March 9, 2010 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On March 9, 2010, Complainant and the Agency entered into a settlement agreement to resolve a matter that was pursued in the EEO complaint process. The settlement agreement provided, in pertinent part, that:
2.a. The agency will:
(1) Encourage your participation in the NAVSEA mentorship program. You should spend a minimum of six months working with your mentor to help develop communication skills, interpersonal relationships and other items related to career development as deemed appropriate by you and your mentor.
(2) Provide up to 40 hours of training on communication development courses to be completed within one year of this agreement.
(3) Consider you for stand-in supervisor positions upon completion of at least six months of mentorship and completion of up to 40 hours of training.
2.b. The complainant will:
(1) Provide the title and dates of courses related to communication skills desired to attend at least two weeks prior to the course, more if possible, not to exceed a total of 40 hours of training.
(2) Provide feedback on any classes attended. The feedback may be positive or negative in respect to your personal and/or professional growth. Feedback may be delivered in person or in writing to [a named Agency official].
In a complaint form to the Agency dated June 27, 2011, Complainant alleged that the Agency breached the subject settlement agreement.1 The record further reflects that Complainant alleged that the Agency would make him a Foreman if he attended communication classes pursuant to the terms of the instant agreement; that he had signed up for the communication classes, but that the Agency denied his requests.
The Agency found no breach. Specifically, the Agency noted that a review of the class enrollments and cancellations at the Command University for the past year showed no evidence indicating that Complainant enrolled in any communication classes. The Agency determined that a named Agency official stated that he had not heard from Complainant regarding his mentorship program or training. The Agency official also stated that there was nothing in the settlement agreement indicating that Complainant would be guaranteed a supervisor position, but that he instead would be considered for stand-in positions upon completion of the six month mentorship and 40 hours of training.
The instant appeal followed.
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. 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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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).
Complainant, on appeal, argues that the Agency erred finding no breach. For instance, Complainant states that the EEO office committed perjury "in stating that I made no attempt to schedule a communication class. I told [a named EEO representative]: name, date and code of person I scheduled communication class with. Shop 26 [former Shop 26 Training Coordinator] MAY 2010. The PSNS EEO office conveniently withheld this information also. [Former Shop 26 Training Coordinator] was never contacted. "
The record contains a copy of the former Training Coordinator's email dated August 29, 2011. Therein, the former Training Coordinator stated that during the time he was the acting Shop 26 Training Coordinator, Complainant "came to see me concerning classes [and] he was informed he needed to take to have his Supervisor Qualifications returned. The one class I can remember him requesting was 'How to Deal with Difficult People'. At that time, the only one class I could find open for him, was sometime in May of 2010. After I scheduled him for that class, I was later informed that he had been removed from enrollment of that class."
Further, Complainant argues that the EEO office "intentionally missed [the] main focus of my complaint in order to deny it...my main focus of complaint is that there are several positions in Shop 26 which I am qualified for that were denied to me because of reprisal and because I am handicapped. These positions include but are not limited to: planner, rod issue station attendant, welder work leader and foreman."
In response to Complainant's appeal, the Agency states that Complainant's separate claims of discrimination are being processed as a separate complaint rather than a breach allegation. The Agency further states that Complainant has not provided evidence in support of his breach allegation that the Agency denied him the opportunity to take communication classes. The Agency further states that it did not promise Complainant a Foreman position. Instead, the Agency states that it agreed to consider Complainant for stand-in supervisor positions upon his completion of at least six months of mentorship and completion of up to 40 hours of training. The Agency stated that during the relevant period, Complainant did not attend the required training and did not complete six months of mentorship.
We find that the Agency complied with the terms of the March 9, 2010 settlement agreement. Provision 2.a.(1) - (2) of the agreement provides for an affirmative Agency obligation to encourage Complainant's participation in the NAVSEA mentorship program and provide 40 hours of training on communication development courses. We note that the record contains a copy of a Command University representative's July 28, 2011 response to the EEO Complaints Manager's email. Therein, the Command University representative stated that they cancelled several computer classes due to low enrollment and "then some classes in June and July [2011] due to lack of funds...I didn't see . . . records for [Complainant] in any communication classes. There is always the possibility that he was promised something but not acted on, or enrolled and then unenrolled for no reason provided...I also checked our scheduling workbooks (which contains people who request a specific class/date and also names on wait list) and did not see his name anywhere. It's not impossible, but I don't see any evidence of him being enrolled for some sort of Communication classes in the past year which were subsequently cancelled."
We further note that other than providing the former Shop 26 Training Coordinator's email about taking a communication class, Complainant has not provided any other documentation listing the courses of interest that had been denied by the Agency.
Provision 2.a.(3) provides for an affirmative Agency obligation to consider Complainant for stand-in supervisor positions upon completion of at least six months of mentorship and completion of up to 40 hours of training. Complainant asserts, however, that the Agency would make him a Foreman if he attended communication classes but the Agency denied him the opportunity to take the classes. We discern no evidence in the record supporting this assertion.
The Agency's finding of no breach of the March 9, 2010 settlement agreement was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
November 6, 2012
__________________
Date
1 The record does not contain a copy of Complainant's complaint alleging breach of the instant agreement. We can, however, determine the essence of Complainant's breach claim in the context of other documents of record.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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