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