01A10283_r
07-05-2002
Nader Nada, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Nader Nada v. Department of the Navy
01A10283
July 5, 2002
.
Nader Nada,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A10283
Agency No. 6227100002
DECISION
The record reveals that on August 8, 2000, complainant filed an informal
EEO complaint in which he claimed that he had been discriminated against
on the basis of his national origin (Middle East) when a professor and
a dean at the Naval Postgraduate School harassed him. Specifically,
complainant claimed that the following incidents occurred:
1. On May 25, 2000, the Software Engineering Group Chair (hereinafter
referred to as the Chair) completely ignored his e-mail to hold a
meeting to discuss their work plan and to discuss their agreement terms
and conditions.
2. On July 5, 2000, the Chair did not abide with a written contract term
and condition and ordered complainant to teach three classes that are
not software engineering and distance learning as stated in the contract,
instead of doing research with the Chair as it was agreed upon.
3. On July 20, 2000, an NPS Ph.D student called complainant at his
office and said that the Chair ordered him to cancel a MIPR that was
sent to complainant as his dissertation adviser to cover his travel
expenses for a conference to present the accepted and published paper.
The Chair asked the student to change the MIPR to the Chair's name and
she also asked him to change his dissertation committee.
4. On July 24, 2000, the Chair called complainant in the morning at
home and threatened that she would file a harassment case against him on
behalf of one of her staff, and she also threatened to fire complainant.
5. On August 1, 2000, complainant received an e-mail from the
Ph.D. student which stated that the Chair asked him to stay away from
complainant.
6. On July 22, 2000, the Chair called complainant into her office and
told him that she would offer him a one month salary for conducting
research with her, and that he would teach two courses, and she asked
him to search for an instructor to teach the third course.
7. On August 2, 2000, during their meeting with the Dean, the Chair
denied that she agreed with complainant to offer him a one month salary
instead of teaching a third class.
8. On July 13, 2000, the Dean came to complainant's office and humiliated
him by harshly forcing him to teach the third course against his will
and the agreement.
9. On August 2, 2000, the Dean humiliated complainant again by calling
him a liar in the Chair's presence.
On August 10, 2000, the agency issued complainant a notice of termination
effective August 11, 2000. Complainant amended his informal complaint
to include a claim regarding the termination notice. On August 14,
2000, complainant and the agency entered into a settlement of the
informal complaint. The settlement agreement provided, in pertinent
part, as follows:
The Naval Postgraduate School and Visiting Professor [complainant]
voluntarily enter into the following agreement:
The Naval Postgraduate School agrees to pay [complainant's] salary until
the close of business 31 August 2000.
The Naval Postgraduate School agrees to authorize [complainant] the use
of his current office and equipment located therein until the close of
business 31 August 2000.
[Complainant] agrees that he will have no interaction with the staff and
faculty in the Computer Science Department. Furthermore, he understands
that all duties associated with his appointment will cease at the close
of business on 14 August 2000.
The Naval Postgraduate School agrees to approve a leave-without-pay status
beginning 1 September and not-to-exceed 7 December 2000 at which time
[complainant's] appointment will expire.
In exchange for the above agreement, [complainant] agrees to withdraw
any and or all pending complaints or legal actions including but not
limited to Equal Employment Opportunity complaints.
On September 7, 2000, complainant filed a formal EEO complaint wherein
he claimed that he had been discriminated against on the basis of his
national origin (Egyptian) when:
The agency did not abide by his written agreement regarding his tasks.
The agency forced him to change his tasks.
The agency prevented his access to a MIPR fund sent to him by another
federal organization to be used by him to attend two conferences.
Complainant was harassed several times in the Dean's Office.
The agency harassed him to sign an unlawful agreement to withdraw his
EEO complaint.
The agency broke into his office and took the computer he was using
without his prior approval.
The agency sent him a discharge letter as a tool to force him to sign
a withdrawal agreement.
The EEO Office informed him that his complaint had been closed without a
formal request from him to do so. The EEO Office allowed the HR Director
to order it to close the case.
9. The Management, including EEO and HR, are on the side of the Dean,
and they played a big role in bending the law.
In its decision dated September 12, 2000, the agency dismissed claims
1-4 pursuant to 29 C.F.R. �1614.107(a)(1), on the grounds that these
claims are the same as those raised in the informal complaint that was
settled on August 14, 2000. The agency dismissed claims 5-9 pursuant
to 29 C.F.R. �1614.107(a)(2), on the grounds that these claims were not
brought to the attention of an EEO Counselor prior to the filing of the
formal complaint. Thereafter, complainant filed the instant appeal.
In response, the agency asserts that complainant knowingly and
voluntarily agreed to withdraw his informal EEO complaint and enter
into the settlement agreement. The agency states that claims 1-4 are
the same claims that complainant raised in his informal complaint that
was pending when he entered into the settlement agreement, according
to which complainant agreed to withdraw any and all pending complaints.
The agency notes that after complainant signed the settlement agreement,
he insisted that he be allowed to pursue his informal complaint while
he remained employed by the agency. According to the agency, it made
clear to complainant that his withdrawal of the informal complaint was
quid pro quo for his continued employment, and complainant subsequently
confirmed his agreement to withdraw the informal complaint. With regard
to claims 5-9, the agency asserts that these claims were raised for
the first time in the formal complaint. The agency notes that there is
no EEO Counselor's report associated with the formal complaint because
complainant filed the formal complaint as his next act after he entered
into the settlement of the informal complaint.
On December 8, 2000, complainant submitted an argument in response to the
agency's statement. Complainant claims that he unwillingly signed the
settlement agreement. According to complainant, agency officials told
him he could either sign the agreement or police officers would remove
him from his office by 4:30 pm. Complainant maintains that the agency
failed to comply with the agreement when they broke into his office and
removed the personal computer that he was using for teaching and research.
Complainant claims that the agency erased all of his files, including
the EEO case files and all of his e-mail files, without his approval.
According to complainant, he subsequently requested that the EEO Counselor
continue the complaint process. With respect to claims 5-9, complainant
states that he reported these events to the EEO Counselor and asked the
EEO Counselor to amend these claims to his case file. Complainant charges
that this is why the agency failed to submit an EEO Counselor's report.
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final action, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
The Commission has consistently held that settlement agreements are
contracts between the complainant and the agency, and 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 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, 381 (5th Cir. 1984).
After a review of the entire record, the Commission finds that complainant
is attempting to have the settled matter reinstated for processing.
The Commission finds that in the instant complaint, complainant is
alleging that he was coerced into entering the agreement and/or that he
entered the agreement under duress. Furthermore, complainant is alleging
that the agency breached the settlement agreement. The Commission finds
that the circumstances of this case warrant that the matter addressed
by the agency as a complaint of discrimination, should instead be
addressed, pursuant to � 1614.504, as a claim by complainant that the
agency breached the settlement agreement. The record does not contain
sufficient information to determine whether the settlement agreement was
voluntarily entered into by complainant or whether the agency breached
the settlement agreement. Therefore, we shall remand the matter so that
the agency may issue a decision as to whether complainant voluntarily
entered into the settlement agreement and whether the agency breached
the agreement.
Accordingly, the agency's decision in this matter is VACATED and the
matter is REMANDED to the agency for processing pursuant to the Order
herein.
ORDER
Within 30 days of the date this decision becomes final, the agency shall,
pursuant to � 1614.504, issue a decision determining whether complainant
voluntarily entered the settlement agreement and whether the agreement
was breached. The agency shall supplement the record with evidence
supporting its decision. A copy of the agency's decision must be sent
to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 (M0701)
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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
July 5, 2002
__________________
Date