Robert W. Curtis, Complainant,v.F. Whitten Peters, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionOct 16, 2000
01994761 (E.E.O.C. Oct. 16, 2000)

01994761

10-16-2000

Robert W. Curtis, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.


Robert W. Curtis v. Department of the Air Force

01994761

October 16, 2000

.

Robert W. Curtis,

Complainant,

v.

F. Whitten Peters,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 01994761

Agency No. AL900990649

DECISION

Complainant and the agency entered into a settlement agreement on June 25,

1998, and then amended the agreement on July 23, 1998.<1> On August 10,

1998, complainant alleged breach of the agreement, which the agency

denied in a September 14, 1998 decision. Complainant appealed the

agency's denial to this Commission on April 21, 1999. The Commission

accepts the appeal to review the agency's denial of breach.<2>

The settlement agreement provided, in pertinent part, that:

The Agency agrees upon receipt and review of documented overtime to pay

[complainant's] total claim of unpaid uncompensated overtime.

. . . .

The Agency agrees that [complainant] will provide input and assist in

the development of [his] job description.

. . . .

The Agency agrees to place [complainant] in a LWOP status not to exceed

one year at the time of his request, to transfer with his spouse to

her new duty station. Expected DEROS is Oct. 1998. [Complainant's]

LWOP status will end when [complainant] accepts and is assigned a GS

position at the new duty station or at the end of 12 months.

The Agency agrees to review [complainant's] current 971 and remove

entries dated over two years. The Agency agrees to destroy all data,

documentation and files (including computer files and floppy's [sic]),

and documents, including those that were found in the alleged (secret)

folder maintained by Services. The EPF will be reviewed within 30

days. All data, adverse data and documentation two years old will

be permanently removed from the Supervisor's folder. This will be

accomplished at the HRO office. All paper will be shredded and floppies

will be destroyed.

. . . .

The agency agrees to review information presented by [complainant and to]

take appropriate actions as deemed necessary.

The Agency agrees to develop and implement (with employee input) a

training plan for the employee. The training plan will include immediate

scheduling of official ONIX, Novel Certified training, and Microsoft

Certified Training, Networking Infrastructure Training, and Systems

training. Official Certified training (such as INTEC Training Center)

will be attended by [complainant] starting immediately. Per diem,

travel, tuition and lodging costs will be provided by the Agency to

[complainant] to attend and return from training. [Complainant] will

not be required to commute daily to the training. Training will be

provided upon availability of funds.

. . . .

[Complainant] also agrees that the Agency will review [complainant's

Office of Workers' Compensation (OWCP)] claim for injury and occupational

illness to substantiate said claim. [Complainant] acknowledges that

decisions to be made regarding his [OWCP claim] are made at offices

including HQ AFSVA in San Antonio, Texas and other offices outside

Yokota Air Base, that the Base Legal Office has no part in making

decisions regarding the merits of his OWCP claim and any involvement

of the Base Legal Office in this matter is at the request of other

Agency attorneys located outside of Japan who request assistance in

coordinating matters between them and [complainant]. [Complainant]

is currently under treatment by Dr.[A], Clinical Psychologist, and

Dr.[B], Psychiatrist of Yokota MHC for illnesses which [complainant]

alleges are work related and that caused illness. [Complainant] agrees

to release medical records, with confidentiality.<3>

In his August 10, 1998 claim of breach, complainant requested that the

agency reinstate his complaint. He did not specify how he believed

the settlement had been breached. In its September 14, 1998 decision,

the agency concluded that no breach occurred.

On appeal, complainant argues that the agency refused to pay overtime,

failed to obtain complainant's input when developing his position

description, threatened him for four weeks concerning his EEO status

before granting his year of LWOP, failed to destroy the supervisor's

�secret folder,� took no action against the responsible agency officials,

and continued to controvert his medical (Workers' Compensation) claim.

Complainant asserts that he attended courses to become a Microsoft

Certified Systems Engineer, but was not reimbursed by the agency for

$8,000 in tuition costs. He contends that the agency retaliated against

him by refusing to hire him at a new duty station when he applied, and

denying LWOP to secure complainant's seniority and �tenure.� Complainant

requests compensatory damages for the agency's misdeeds, and a written

guarantee for placement in a GS-12 Information Technology position in

the agency regardless of where his wife is transferred.

In response, the agency contends that complainant failed to submit

documentation to substantiate further overtime payments. It notes that

complainant received one year of LWOP as contemplated under the agreement.

Concerning complainant's Workers' Compensation claim (OWCP), the agency

argues that no evidence substantiates complainant's claim. Further,

it asserts that it had nothing to do with complainant's OWCP claim.

Concerning training, the agency contends that complainant was offered

training at Hickham AFB. According to the agency, complainant refused

the training because he thought it was inadequate. The agency states

that complainant knew exactly which courses he wished to attend at the

time he signed his settlement agreement, but failed to specify them in

the agreement itself.

The record also contains a copy of an October 1, 1998 personnel action

granting complainant one year of LWOP. In another personnel action

dated October 6, 1999, complainant resigned from the agency.

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.

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 intent of the parties as expressed in the contract

controls the construction of the contract, not some unexpressed intention.

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 generally relies

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 (5th Cir. 1984).

In the instant case, complainant provided no evidence on appeal to

substantiate his overtime claim. Further, the record contains no

information concerning complainant's overtime. Given the lack of

proof that complainant submitted evidence of unpaid overtime, the

Commission finds no breach of provision (2). The record also reveals

that complainant received one year of LWOP as contemplated in provision

(8) in the agreement. Therefore, the Commission finds no breach of

provision (8).

Complainant claims breach because the agency failed to discipline the

responsible officials. However, provision (11) of the agreement does

not require the agency to discipline the officials. Further, the record

contains no information submitted by complainant to induce such from the

term �appropriate action.� Therefore, the Commission finds no breach

of provision (11) of the agreement.

The Commission also finds no breach for contradicting complainant's

OWCP claim. Even assuming that the agency actually opposed complainant's

claim, the settlement agreement as amended does not prohibit such action.

To the contrary, provision (16) states that complainant's facility �has

no part in making decisions regarding to merits of [complainant's OWCP]

claim.� Therefore, the Commission finds no breach of provision (16).

Complainant contends that the agency prohibited him from having input

into the development of his job description as required by provision

(5). The agency failed to address this issue, and the record provides

no information of how complainant's job description was developed.

Given this lack of information, the Commission is unable to determine

whether the provision was breached, and remands the matter for further

investigation. See 29 C.F.R. � 1614.504(c).

The agency also failed to address whether it destroyed the personnel

folder maintained by complainant's supervisor. Complainant argues that

his past supervisor still maintains the secret file, in violation of

the agreement. The Commission is unable to determine whether information

from the file was destroyed as provided in provision (9) of the agreement,

and therefore must remand the matter for further investigation. Id.

Provision (12) requires the agency to implement a training plan for

complainant. Both complainant and the agency argue whether a certain

training class should qualify under provision (12), but neither provide

a copy of the required training plan. Without a copy of the plan,

the Commission cannot determine whether the agency's refusal to provide

(or reimburse) complainant with a particular class constituted breach.

Therefore, this matter also must be remanded for further investigation.

Finally, complainant alleged reprisal from the agency's failure to hire

complainant at a new duty station in California. This matter does not

appear within the plain language of the settlement agreement; it must

be addressed as a separate complaint. Complainant is advised that if he

wishes to pursue, through the EEO process, the additional reprisal claims

he raised for the first time on appeal, he must initiate contact with an

EEO Counselor within 15 days of receiving this decision. The Commission

advises the agency that if complainant seeks EEO counseling regarding

the new claims within the above 15-day period, the date complainant

filed the appeal statement in this appeal shall be deemed to be the date

of the initial EEO contact, unless he previously contacted a counselor

regarding these matters, in which case the earlier date would serve as

the EEO Counselor contact date. Cf. Qatsha v. Department of the Navy,

EEOC Request No. 05970201 (January 16, 1998).

CONCLUSION

Accordingly, the agency's finding of no breach is AFFIRMED for provisions

(2), (8), (11), and (16) of the settlement agreement. The agency's

decision with regard to provisions (5), (9), and (12) is VACATED, and

the claims are REMANDED for further investigation as provided below.

ORDER

The agency is ordered to perform the following actions:

(1) The agency shall gather information concerning how complainant's

job description was developed. This information must include a copy

of the final job description, any input provided by complainant, and

affidavits/statements from officials involved in developing the job

description.

(2) The agency shall supplement the record with affidavits from

appropriate agency officials addressing whether the agency complied with

provision (9) of the settlement agreement by destroying all appropriate

documents contained in the alleged �secret� folder. These affidavits

must address where the file was kept, whether any copies remain, what

happened to the file, how the subject data was destroyed, who destroyed

the information, and the date of destruction of the information.

(3) The agency also must supplement the record with a copy of the

training plan created for complainant pursuant to provision (12) of

this settlement agreement. If such a training plan exists, then the

agency must determine whether the agency failed to reimburse complainant

for tuition costs as alleged by complainant and whether such a failure

constituted breach of provision (12) of the settlement agreement.

Within 60 calendar days of the date this decision becomes final, the

agency must conclude its supplemental investigation (as described in

provisions 1 - 3 of this Order) and must issue a decision concerning

whether it breached provisions (5), (9), and (12) of the agreement.

The agency's new decision must provide complainant with appeal rights

to this Commission. The agency must provide a copy of the new decision

regarding breach of the agreement to the Compliance Officer as provided

herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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)(Supp. V 1993). 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 (M0900)

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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 (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

October 16, 2000

__________________

Date

1On November 9, 1999, revised regulations

governing the EEOC's federal sector complaint process went into effect.

These regulations apply to all federal sector EEO complaints pending at

any stage in the administrative process. Consequently, the Commission

will apply the revised regulations found at 29 C.F.R. Part 1614 in

deciding the present appeal. The regulations, as amended, may also be

found at the Commission's website at www.eeoc.gov.

2The agency argues that complainant's appeal was untimely, but provides

no proof of the date complainant's attorney received the final decision.

When complainant is represented by an attorney, timeliness considerations

are computed from the date of the attorney's receipt of documents,

not complainant's. See 29 C.F.R. � 1614.402(b). Since the agency

provided no proof of the attorney's receipt, the Commission presumes

that complainant's appeal was timely filed.

3Prior to the July 23, 1998 amendment, provision (16) stated, �The Agency

agrees to continue to aid and assist the employee with his claim and

treatment for injury/occupational illness.�