0120061718
10-24-2006
Stacey V. Nelson, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Stacey V. Nelson v. Department of the Navy
0120061718
10-24-06
.
Stacey V. Nelson,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120061718<1>
Agency No. 03-063285-004
Hearing No. 370-2004-00133x
DECISION
On January 15, 2006, Stacey V. Nelson (complainant) filed an appeal
concerning the determination of the Department of the Navy (agency) that
it was not in breach of the Settlement Agreement, dated October 19, 2004.
Complainant's appeal is timely filed (see 29 C.F.R. � 1614.402(a))
and is accepted in accordance with 29 C.F.R. � 1614.405.
Prior to the hearing on complainant's formal complaint, the parties, with
the assistance of the Administrative Judge, entered into a settlement
agreement (SA), memorialized in a document signed and dated October 19,
2004.<2> On (a) November 11, (b) December 11, and (c) December 20, 2005,
complainant notified the agency that it had breached the SA; the agency
responded on November 8, December 15, and December 22, 2005. In addition,
during the pendency of this appeal, complainant alleged another breach
of the SA on (d) May 29, 2006, in a pleading filed with the Commission;
the agency filed a response on June 28, 2006. Although complainant's
allegation of breach in (d) did not comply with our regulation found
at 29 C.F.R. � 1614.504, because we are considering other allegations
of breach, in the interests of judicial economy, we will address this
claim as well, to the extent that it alleges a breach of the SA.
At the time of the events herein, complainant worked for the agency's
investigation service as an Investigator, located in Yokosuka, Japan.
The terms of the SA provided, inter alia, that in exchange for withdrawal
of his complaints, including all supplements and amendments, that
complainant be promoted to GS-12/7, that he receive an amount of money,
that he attend one training course, for the destruction of certain medical
documents in the possession of the agency, that the agency not retaliate
and not reclassify his position, and that the agency remove comments in
his performance appraisal (PARS) for the period ending May 31, 2003.<3>
We will address complainant's allegations of breach seriatim.<4>
(a) Paragraphs 9 and 16
Paragraph 9 provided that complainant will be afforded one training course
on or before October 31, 2006, that is within his medical restrictions
and that his supervisor approved as relevant to his job. The agency
reported that complainant attended a training course the week of March
13, 2006. Complainant contended that his supervisor's (S1) refusal to
allow him to take a firearms course was a breach of the SA. The terms
of the SA grant S1 the right of approval, and he did not approve the
firearms course for complainant.
Paragraph 16 provided that the agency will not retaliate against
complainant and noted that complainant feared reclassification of his
position to a lower pay grade. The agency informed complainant that
no classification actions were pending at that time and that removal
of his authorization to carry firearms would not affect his pay or job
classification.<5>
(b) Paragraph 14
As part of the discovery process prior to the hearing, complainant
tendered Exhibit 1 (CE1) to the agency, which included �numerous medical
documents from the Complainant's various medical providers.� In Paragraph
14, the agency agreed to �destroy all copies of said medical records�
within 90 days of execution of the SA, or before approximately January
19, 2005. In addition, the agency was to confirm in writing that the
documents had been destroyed. Complainant informed the agency that he
had not been notified of the destruction of documents and questioned
their destruction; he also attempted to argue that the SA required that
all of CE1 as well as the documents referenced in Paragraph 13 should
be destroyed. By affidavit testimony, the agency's attorney stated that
she destroyed all documents described in Paragraph 14 in December 2004,
but had neglected to confirm her actions to complainant at that time.
When complainant inquired about the documents in December 2005, she
informed complainant of the destruction and identified the specific
documents that were destroyed. The agency also argued that it acted
in accordance with the specific terms of the SA, Paragraph 14, and that
complainant was not entitled to further relief.
(c) Paragraph 11
In Paragraph 11, the agency agreed to remove all comments from
complainant's PARS for the rating cycle ending May 31, 2003, grant
complainant an acceptable rating in all elements, and substitute the new
document in his �personnel files.� On December 29, 2005, complainant
discovered a copy of the previous PARS in a file in S1's office, which
led him to examine all personnel files, but he found no other copies.
The agency and S1 explained that S1's file was not official but agreed
to destroy the document.
(d) Paragraph 12
This paragraph required the agency to destroy and remove a Letter
of reprimand (LOR) issued to complainant on February 19, 2004,
from his personnel files after two years from the date of issuance.
This LOR was issued to complainant for sending emails that were deemed
insulting, obscene, and inappropriate to his co-workers and others.
From December 2005, through April 2006, complainant sent a series of
emails to higher-level managers found to be disrespectful, insulting,
and inappropriate. On April 26, 2006, he was issued a written LOR,
which noted his February 2004, LOR but stated that it had not been used
to determine his penalty. Complainant contended that reference to his
February 2004, LOR was a breach of the SA. The agency argued that his
actions preceded the date for removal of the earlier LOR and that it
was not considered in determining his punishment.
The Commission's regulations provide a process for complainants to
raise allegations that the agency breached a settlement agreement.
See 29 C.F.R. � 1614.504. The Commission is mindful that settlement
agreements are contracts between a complainant and the agency, and it is
the intent of the parties, as expressed in the agreement, that controls
the construction of the contract. Acree v. Department of the Navy, EEOC
Request No. 05900784 (October 4, 1990). In interpreting a contract, the
Commission looks to the language of the contract and to the intention of
the parties as expressed through the written agreement. Carroll v. United
States Postal Service, EEOC Request No. 05901072 (October 25, 1990).
In ascertaining the intent of the parties, the Commission relies on the
plain meaning of the words, and, if the document is plain and unambiguous
on its face, its meaning will be determined from the four corners of the
instrument without resort to extrinsic evidence. O'Farrell v. United
States Postal Service, EEOC Request No. 05910518 (September 25, 1991),
citing Montgomery Elevator v. Building Engineering Service, 730 F.2d 377
(5th Cir. 1984).
After a thorough review of the record before us, including the preamble
of the SA and the statements on appeal of the parties, we find that the
SA is plain and unambiguous on its face and that the agency did not breach
the SA. Complainant's arguments and contentions that the parties intended
something different or more expansive than is set forth in the SA's terms
are belied by the precise and comprehensive wording of each provision.
Thus, we must look to the specific language of each provision.
Specifically, with regard to Paragraph 9, we find that the SA provided
that selection and approval for the training course was given to S1.
Complainant's contentions that higher-level managers influenced S1 are
not relevant, since ultimately S1 expressed his authority. In Paragraph
16, the agency promised that it would not retaliate against complainant
and not reclassify his position to a lower pay grade. Complainant,
apparently concerned that removal of his firearms authorization would
affect his job classification, alleged a breach of this section but did
not show that any reclassification action was in process.
As to his allegation of breach regarding Paragraph 14, complainant
criticized the agency for failing to destroy the medical documents in
CE1, since he had not been notified; argued that the SA called for the
destruction of all of CE1; and contended that the SA required destruction
of the documents referenced in Paragraph 13. We find that the agency
presented probative evidence that the �medical documents� referred to
in Paragraph 14 were destroyed in December 2004, and we find that the
agency's failure to confirm the destruction was de minimis and likely
of little importance to complainant, since he did not inquire about the
documents until December 2005. Similarly, we find that complainant's
allegation of breach of Paragraph 11, because he found a copy of
his previous PARS in his supervisor's office, to be insignificant
and inconsequential. The agency was obligated to remove the previous
PARS from �personnel files,� and S1's office files were not official
�personnel files.� Further, S1 was unaware that the prior PARS was
located in his office, until brought to his attention by complainant,
so was obviously of little import to S1.
Finally, we find that complainant presented no evidence that the agency
did not comply with Paragraph 12. That the agency referred to the 2004
LOR in the LOR issued to him on April 26, 2006, does not demonstrate
noncompliance with Paragraph 12. In addition, we note that in the 2006,
LOR, the agency stated that it did not rely on the 2004, document in
setting his punishment and gave complainant the lowest penalty for a
LOR.
For all of the above reasons, we find that the agency did not breach
the SA.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
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 (S0900)
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 (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
___10-24-06_______________
Date
1Due to a new data system, your case has been redesignated with the
above-referenced appeal number.
2Complainant filed a formal complaint on April 22, 2004, claiming
discrimination based on disability (degenerative joint disease) and in
reprisal for prior EEO activity.
3In addition, Paragraph 6 required that complainant contact his doctor
(Dr. Y) to provide the agency a statement of his medical restrictions with
regard to his duties. Dr. Y responded on August 23, 2004, essentially
stating that complainant should be allowed to adjust his duties according
to his pain levels.
4Complainant is advised that our regulations do not provide for replies
to agency comments filed in response to a complainant's appeal, nor do
we entertain motions or other pleas on appeal. Complaints that allege
dissatisfaction with the processing of an EEO complaint must be brought
to the attention of the agency's EEO director. EEOC Regulation 29
C.F.R. � 1614.107(a)(8) provides that an agency shall dismiss a complaint
that alleges dissatisfaction with the processing of a previously filed
complaint. Chapter Five of the EEOC Management Directive 110 (November
9, 1999) (MD-110) defines such a complaint as a "spin-off" complaint.
Therefore, we will not address complainant's filings dated after March
5, 2006, and any agency reply, except for the claim of breach raised
in the May 29, 2006, filing and the agency's response dated June 28,
2006. Finally, we advise complainant that he is obligated to serve the
agency's representative, as identified to him whether by email, letter,
or pleading, and that the agency's comments filed in response to his
appeal statement were timely filed.
5The record indicated that in August 2005, complainant's authorization
to carry firearms was removed. In addition, the record showed that in
February 2006, complainant was relieved of all law enforcement duties,
as well as his pistol.