Lawrence Thrash, Complainant,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionDec 24, 2009
0120092905 (E.E.O.C. Dec. 24, 2009)

0120092905

12-24-2009

Lawrence Thrash, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.


Lawrence Thrash,

Complainant,

v.

Pete Geren,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120092905

Agency No. ARBELVOIR08SEP03729

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision dated June 19, 2009, finding that it was in compliance

with the terms of a March 11, 2009 settlement agreement into which the

parties entered. See 29 C.F.R. �� 1614.402; 1614.405; and 1614.504(b).

Background

Complainant (African American) was employed by the agency from October

1989 until his removal in April 2009. In total, he had combined military

and federal service of approximately 26 years, and held the position

of Information Technology Specialist, GS-14 in the Office of Public

and Congressional Affairs, at the time of his removal. In October 2007,

complainant filed an EEO complaint alleging race and gender discrimination

against his first-line supervisor concerning a low performance appraisal.

This complaint was settled through mediation, with the agency agreeing to

increase the performance appraisal at issue. However, in October 2008,

complainant filed a second EEO complainant asserting the same first-line

supervisor engaged in ongoing harassment in retaliation for the first

complaint, as well as because of his race and gender. The parties again

entered into settlement negotiations concerning this second complaint,

which eventually resulted in the March 11, 2009 settlement agreement

at issue in the present appeal. The record establishes that during

the negotiations, the agency informed complainant that the first-line

supervisor was in the process of preparing a notice of proposed removal,

although one was not issued prior to the execution of the agreement.

The settlement agreement provided, in pertinent part, that:

3. The Agency agrees:

a. Not to proceed with the proposal to remove the Complainant from

the federal service that is currently being prepared by management and

would be considered as a 3rd offense.

b. The Agency agrees to remove the prior two suspensions from the

Complainant's OPF and from all official records except for the purpose

of enforcing the terms of this agreement as referenced below. The time

suspended will be changed to Leave Without Pay.

c. To restore 128 hours of annual leave. . . .

e. Change the Complainant's performance appraisal for the period

of 1 July 2007 through 30 June 2008 from a 4 block to 3 block.

f. Allow the Complainant to participate in the [agency] Shared

Neutrals program within the dictates of mission requirements as determined

by Complainant's supervisor. . . .

4. The Complainant agrees . . .

c. That this agreement will be maintained in his OPF for a

period of three (3) years or until he leaves the employment of

the Agency whichever occurs first.

d. If [complainant] engages in misconduct of any nature within the life

of this agreement, as defined in paragraph 4C above, that the prior

two suspensions will be reinstated for purposes of supporting a charge

of a 3rd offense which will automatically result in the Complainant's

removal from the federal service without the right to appeal. If the

1st line supervisor believes that Complainant has engaged in misconduct

and therefore has breached this agreement, he/she will so advise the

Complainant in writing. Complainant will be given the opportunity to

present an oral and or written reply to the 2nd line supervisor whose

decision will be final and binding. Complainant understands that he is

waiving the right to appeal the decision of the 2nd line supervisor even

in the case of the removal action.

Within weeks of the execution of the settlement agreement, complainant's

first-line supervisor served him with written notice that he believed

complainant had engaged in misconduct on five separate occasions in

violation of provision 4(d) of the agreement, which would justify his

termination. Complainant filed a written response denying the charges.

On April 28, 2009, the agency removed complainant from employment for

purportedly engaging in misconduct on two occasions1 in violation of the

agreement - for departing about 55 minutes early without prior permission

(AWOL) on March 13, 2009, and for arriving to work 14 minutes late on

March 17, 2009.

By letter to the agency dated May 21, 2009, complainant alleged that

the agency breached the settlement agreement, and requested that the

agency specifically implement its terms and reinstate complainant.

Specifically, complainant alleged that the agency: (1) on April 28,

2009, removed him from his position for reasons that did not constitute

misconduct under the agreement, (2) continued with a proposal to remove

complainant from his position, (3) failed to remove two prior suspensions

from complainant's official personnel file, (4) failed to restore 128

hours of annual leave to complainant, (5) failed to change complainant's

performance appraisal from a 4 block to a 3 block for the July 2007 to

June 2008 rating period, and (6) did not allow complainant to participate

in the agency Shared Neutrals program.

In its June 19 final decision, the agency concluded that it was in

compliance with the March 11 agreement. Specifically, the agency stated

that it removed complainant from Federal service, on April 28, 2009,

for misconduct of absence without office leave (AWOL) and tardiness;

it did not remove complainant's two prior suspensions from his official

personnel file (OPF) because he engaged in misconduct less than two days

after signing the instant settlement agreement, so it did not have time

to do so; complainant will receive the 128 hours of restored leave once

it is processed by an organization over which the agency has no control

- the Defense Finance and Accounting Service; the agency amended the

2007-2008 performance rating from a "4" to a "3;" and complainant did

not participate in the Shared Neutrals Program because of his misconduct

within two days of the settlement agreement. The agency stated that it

acted within the confines of the agreement.

The instant appeal from complainant followed the final decision.

On appeal, complainant stated that the agency failed to respond to

his breach allegation or to accept a new EEO complaint regarding his

termination, so he filed a separate appeal on each matter.2 Further,

complainant stated that the agency acted in bad faith and inappropriately

identified the two attendance matters as misconduct.

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. 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). However, if the terms of the agreement are ambiguous,

the Commission may go beyond the language and look at the intent of the

parties. Wong v. United States Postal Service, EEOC Request No. 05931097

(April 29, 1994).

Complainant argues that the agency did not carry out its obligations under

the settlement agreement in good faith, resulting in his termination being

proposed within weeks of the agreement's execution. The Commission

notes that the agreement required the agency, among other things,

to not proceed with its planned proposed removal, to remove two prior

suspensions from complainant's record, and to only remove complainant

for future "misconduct," although this term was not defined in the

agreement. After thorough review of the record and consideration of

the arguments submitted by both parties on appeal, we are persuaded

that there is evidence of bad faith in the agency's implementation

of the March 11, 2009 settlement agreement. The extraordinary close

proximity between the execution of the agreement (in which management

promised not to proceed with its planned removal action) and the notice

by agency management that it was proceeding with a removal action,

the failure to provide a definition of the critical term "misconduct"

in the agreement, the fact that three of the five "misconduct" charges

lodged by the first-line supervisor were not upheld by upper-level

management, and the relatively minor nature of the alleged "misconduct"

used to end a 26-year government career, all point to the fact that it

is more likely than not that the agency fully intended to continue with

its planned pre-agreement removal action and only signed the agreement

to dispose of complainant's pending EEO complaint before he was removed.

In addition, the agency took the opportunity to convince complainant,

who was not represented by counsel during the negotiations, to waive his

right to appeal a subsequent removal. Under the facts of this case, we

conclude that the record supports a finding of bad faith by the agency

in the implementation of the agreement.

The Commission has previously found that bad faith in implementing a

settlement agreement constitutes a breach. Todd v. Social Security

Administration, EEOC Request No. 05950169 (June 12, 1997); Dupuich

v. Department of the Army, EEOC Appeal No. 0120073901 (November 2, 2007).

Applying this precedent, that Commission concludes that a bad faith

breach has occurred in the instant case. As a result, we are voiding the

settlement agreement3 and are remanding the matter back to the agency to

resume processing of complainant's underlying EEO complaint in accordance

with the following Order. This complaint shall be consolidated with the

EEO complaint the agency is currently processing concerning the removal

action itself. See, supra, note 2.

ORDER

The agency is ordered to resume processing the remanded claims in the

EEO complaint that was settled on March 11, 2009 in accordance with

29 C.F.R. � 1614.108 et seq. The agency shall acknowledge to the

complainant that it has received the remanded claims within thirty (30)

calendar days of the date this decision becomes final. The remanded

complaint shall be consolidated with the complaint currently pending

before the agency on the April 28, 2009 removal action. The agency shall

issue to complainant a copy of the investigative file and also shall

notify complainant of the appropriate rights within one hundred fifty

(150) calendar days of the date this decision becomes final, unless the

matter is otherwise resolved prior to that time. If the complainant

requests a final decision without a hearing, the agency shall issue

a final decision within sixty (60) days of receipt of complainant's

request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)

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 19848,

Washington, D.C. 20036. 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 (R0408)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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

December 24, 2009

__________________

Date

1 The deciding official on the removal was complainant's second-line

supervisor, who determined only two of the five charges of misconduct

lodged by the first-line supervisor were supported.

2 We note that, since filing the instant appeal, complainant informed

the Commission that the agency accepted an EEO complaint regarding his

termination so that matter is now moot.

3 It should be noted that the settlement agreement is voided for all

purposes, including serving as a "last chance" agreement.

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0120092905

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120092905