0120091165
11-19-2009
Marcus Hinton,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120091165
Agency No. 090023200063
DECISION
Complainant filed a timely appeal with this Commission from a second
final agency decision (FAD) dated November 4, 2008,1 finding that the
agency was in compliance with the terms of the October 12, 2005 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:
(1) Supervisor(s) agree to communicate performance deficiencies and
expectations to Complainant as soon as possible.
Complainant alleged that the agency breached the terms of the
settlement agreement because he was not provided timely notification
of any deficiencies in his performance or disciplinary issues relating
to two incidents. The first incident (Incident 1) occurred on July 11,
2007, when complainant's supervisor counseled complainant for being tardy
to work. After the supervisor directed complainant to complete a leave
slip, complainant allegedly made an obscene gesture. However, according
to complainant, the agency did not formally counsel him about making the
obscene gesture until August 29, 2007. The second incident (Incident 2)
occurred on August 21, 2007, when complainant was observed leaving work
early without permission. In the previous decision, the Commission
determined that the record showed the agency initiated a pre-action
investigation on September 12, 2007. On or about October 12, 2007,
complainant was given a proposed suspension and ultimately was suspended.
In its November 4, 2008 FAD, the agency concluded, after performing a
supplemental investigation, that it had promptly notified complainant
of numerous deficiencies with respect to attendance and job performance.
The agency determined that it did not breach the term of the settlement
agreement as alleged by complainant.
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, the Commission notes that, in the absence
of a specific time frame in a settlement agreement, the Commission has
interpreted settlement agreements to provide for a reasonable amount
of time. See, e.g., Gomez v. Department of the Treasury, EEOC Request
No. 05930921 (February 10, 1994) (in absence of specified time frames
for performance, the Commission expects that the terms of a settlement
agreement will be implemented within a reasonable period of time).
Complainant has the burden of proof to show that the agency breached
the settlement agreement. See Vega v. U.S. Postal Service, EEOC Appeal
No. 01986613 (June 30, 2000); Pearson v. U.S. Postal Service, EEOC
Appeal No. 01A02918 (July 6, 2001), req. for reconsid. denied, EEOC
Request No. 05A10957 (July 6, 2001). Upon review of the supplemental
record, the Commission finds that complainant failed to meet his burden
of proving breach.
With regard to Incident 1, the record indicates that complainant
performed an obscene hand gesture in the presence of his supervisor.
However, because it appears that the obscene gesture was not directed
at the supervisor, per se, but at the director, who was not physically
present, it was reasonable that the director did not personally counsel
complainant about the inappropriateness of the gesture towards her until
some time after the incident.
With regard to Incident 2, the supplemental record includes an affidavit
by an agency employee identified as the "Front Desk Leader," who
averred that she verbally counseled complainant about the appropriate
use of leave procedures on August 22, 2007, one day after the incident.
Accordingly, the Commission finds that complainant failed to show that
the agency did not comply with the term of the settlement agreement.
CONCLUSION
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, the Commission affirms the agency's
second FAD, finding no breach.
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
November 19, 2009
Date
1 In Hinton v. Department of the Navy, EEOC Appeal No. 0120083462 (October
17, 2008), complainant filed an appeal from the agency's first FAD,
dated June 11, 2008, finding that it was in compliance with the terms
of the settlement agreement. The Commission determined that there was
insufficient evidence to decide whether the agency had complied with
the settlement agreement. The Commission vacated the agency's decision
and remanded the case for a supplemental investigation and issuance of
a second FAD.
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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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