Marc D. Mopsick, Complainant,v.Kathleen Sebelius, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.

Equal Employment Opportunity CommissionAug 17, 2009
0120073654 (E.E.O.C. Aug. 17, 2009)

0120073654

08-17-2009

Marc D. Mopsick, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.


Marc D. Mopsick,

Complainant,

v.

Kathleen Sebelius,

Secretary,

Department of Health and Human Services

(National Institutes of Health),

Agency.

Appeal No. 0120073654

Agency No. NIHNIMH06-0001

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated August 1, 2007, finding that it was

in compliance with the terms of the July 19, 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.

ISSUE PRESENTED

Whether the agency breached the settlement agreement when it returned

complainant to his Information Technology Specialist position and denied

him a promotion.

BACKGROUND

The settlement agreement provided, in pertinent part, that:

4. [The agency will] Provide a detail for the Complainant which

will commence on or about July 17, 2006. This detail will be with the

Division of Extramural Activities (DEA), under the supervision of [Ph.D].

The detail will be for 9 (nine) months. At the end of the 9 (nine) month

detail, after a review by the Agency which will be concluded no later

than 14 (fourteen) days after the end of the detail, a determination

will be made to extend the detail, reassign the Complainant to the DEA,

or assign the Complainant back to his position of Information Technology

Specialist in the Information Resource Management Technology Branch. While

performing this detail, the complainant will have his office moved from

its current location, to another office in the Neuroscience Building

(6001 Executive Boulevard).

5. As in all other instances, the complainant's promotion

potential will be considered. Promotion to the next grade level is

not automatic even if promotion potential is known (individual is in

a career ladder). Promotion potential should not be construed as a

guarantee. Career Ladder positions and progressive line positions are

governed by Statement of Differences and an evaluation of the candidate

in that regard. Advancement (promotion) is dependent on the needs

and resources of the organization (NIMH), assignment of progressively

more difficult duties and responsibilities, demonstrating satisfactory

ability to perform at each successively higher grade level, meeting

time-in-grade, and meeting all other legal requirements. The evaluation

of the complainant for career ladder promotion will be made by the IT

Office Chief [Chief] in consultation with [Ph.D.].

By letter to the agency dated July 6, 2007, complainant's attorney alleged

that the agency breached the settlement agreement and requested that the

agency specifically implement its terms. Specifically, complainant's

attorney alleged that the agency breached the agreement when the Software

Development Manager cancelled complainant's security pass, which denied

complainant access to agency servers and to the Information Technology

(IT) Branch Offices. Complainant's attorney also claimed that the agency

breached the agreement when the Software Development Manager verbally

abused and slandered him. He further alleged that the agency breached

the agreement when Chief denied him a promotion although Ph.D. recommended

that complainant be promoted.

In its August 1, 2007 FAD, the agency concluded that it did not

breach the agreement. The agency determined that it complied with the

agreement because it provided complainant a detail under the supervision

of Ph.D. for approximately nine months; the agency determined that

complainant would be returned to the Information Resource Management

Technology Branch as an Information Technology Specialist after the

completion of the detail; Chief reviewed Ph.D.'s promotion recommendation

and determined that complainant was "not yet qualified for promotion to

the GS-12 grade level;" and, Chief provided complainant with feedback

regarding work areas in which he felt complainant needed improvement.

On appeal, complainant reiterates the claims contained in his July 6,

2007 breach claim. Additionally, complainant contends that the reasons

cited by Chief for not promoting him are "disingenuous" because Chief did

not personally observe complainant's performance while on detail, did not

rely upon Ph.D.'s promotion recommendation, and relied upon the Software

Development Manager's misinformation about complainant. Complainant

further notes that Chief's evaluation of his detail performance was sent

by email, and complainant never signed the evaluation.

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).

In the instant case, the agency agreed that after the conclusion

of complainant's nine-month detail with the Division of Extramural

Activities, it would determine whether to extend complainant's detail,

reassign complainant to the Division of Extramural Activities, or return

complainant to his IT position. Although we are unable to ascertain

from the record the precise date on which complainant returned to his

IT position, the record indicates that the agency returned complainant

to his IT position by June 1, 2007.

Under provision 4, the agency should have returned complainant to

his IT position in early May 2007. Nevertheless, the Commission has

found substantial compliance with the terms of a settlement breach

where agencies have committed, in good faith, a technical breach

of a provision of the agreement which did not undermine its purpose

or effect. Moreover, we have held that the failure to satisfy a time

frame specified in a settlement agreement does not prevent a finding

of substantial compliance of its terms, especially when all required

actions were subsequently completed. Lazarte v. Department of the

Interior, EEOC Appeal No. 01954274 (April 25, 1996); Sortino v. United

States Postal Service, EEOC Request No. 05950721 (November 21, 1996),

citing Baron v. Department of the Treasury, EEOC Request No. 05930277

(September 30, 1993)(Two week delay in transfer of official letter of

regret rather than letter of apology found to be substantial compliance).

In this matter, we find no evidence in the record that the agency's delay

in returning complainant to his IT position was the result of bad faith

or undermined the purpose or effect of the agreement. Consequently, we

determine that the agency substantially complied with provision 4 when

it returned complainant to his IT position by June 1, 2007. See Arlander

G. Wade v. United States Postal Service, EEOC Appeal No. 01A32572 (July 3,

2003) (Commission found substantial compliance with settlement agreement

when agency scheduled evaluation over two months beyond the time frame

specified in the agreement).

In provision 5, the agency agreed that complainant's career ladder

promotion potential would be evaluated by Chief in consultation with Ph.D.

The record contains a copy of an email from Chief to complainant dated

June 1, 2007 in which Chief evaluated complainant's suitability for

promotion to the GS-12 level. In the email, Chief stated that after

reviewing complainant's work performance and Ph.D's letter recommending

that complainant receive a promotion, he determined that complainant was

"not yet qualified for promotion to the GS-12 grade level." Chief further

stated that complainant needed to improve his work performance in several

areas, including the length of time spent on assignments; communicating

with team members; and, adherence to mandated standard and procedures.

Complainant contends that Chief improperly denied him a promotion

although Ph.D. recommended that complainant be promoted. Complainant

further contends that the reasons cited by Chief for not promoting

him are "disingenuous" because the Chief did not personally observe

complainant's performance while on detail, did not rely upon Ph.D.'s

recommendation, and relied upon the Software Development Manager's

misinformation about complainant. Upon review, we determine that

the terms of the agreement did not guarantee that complainant would

be promoted; in fact, provision 5 states that "promotion to the next

level is not automatic" and "promotion potential should not be construed

as a guarantee." Moreover, while provision 5 states that Chief would

consult with Ph.D. when evaluating complainant's potential for promotion,

it also provides that Chief would make the ultimate decision whether to

promote complainant. Even assuming that complainant's claim that Chief's

reasons for promoting him were disingenuous and based on misinformation,

we determine that the terms of the agreement left the decision to promote

complainant to the Chief's discretion.

We further note that complainant ostensibly objects to Chief sending

his promotion evaluation via email. However, the terms of the agreement

did not specify the manner in which the evaluation would be conducted.

Complainant further contends that he has been subjected to various acts

of discrimination and harassment by the Software Development Manager.

To the extent that complainant claims that he has been subjected to

further discrimination or harassment, the Commission has held that such

claims of discrimination and harassment should be processed as a new,

separate complaint, rather than as a breach allegation. See Bindal

v. Department of Veterans Affairs, EEOC Request No. 05900225 (August 9,

1990). Therefore, claims of further harassment and discrimination should

be raised as a new, separate EEO claim, if complainant has not already

done so.

CONCLUSION

Therefore, upon review of the record, the Commission affirms the agency's

final decision finding no breach of the settlement agreement.

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

_____8/17/09_____________

Date

2

0120073654

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

6

0120073654