0120120132
02-29-2012
Gregory A. Tompkins, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Gregory A. Tompkins,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120120132
Agency No. 09-4523A-00747
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated September 12, 2011, finding that it was in compliance with the terms of an April 16, 2009 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
The April 16, 2009 settlement agreement provided, in pertinent part, that the Agency agreed to the following actions:
1. To help arrange an appointment with [named Agency official] in order to build [Complainant's] CHART account.
2. Recognize [Complainant] for finding a hole in the deck plates marking and arranging to have it repaired with a Safety Act Award.
The settlement agreement also indicated that Complainant agreed to do the following:
To accept all assignments within his qualification and limitations and to advise his supervisor how his limitations impact the job.
By correspondence to the Agency dated August 2, 2011, Complainant alleged breach. On August 26, 2011, the Agency EEO Office sent a letter to Complainant requesting clarification of the breach claims. On September 2, 2011, Complainant provided a narrative response. Therein, Complainant stated that he agreed with the Agency's actions concerning provisions 1 and 2. Complainant also stated that he agreed to accept all assignments within his qualification and limitations and to advise his supervisor how his limitations impact the job. Complainant further stated "I believe in the nature and intent of the agreement was to not work [Complainant] out of his limitations or to push it to the edge on job assignments. Those actions or lack of actions to correct the situation, was a breach and violation of Fed. Workers With Disabilities Act."
In its September 12, 2011 final decision, the Agency found no breach. The Agency stated that in his response to the Agency's request for clarification, Complainant stated that he agreed that the Agency's actions pursuant to provisions 1 and 2, and that he agreed to accept all assignments within his qualification and limitations. The Agency further noted that Complainant notified his supervisor concerning his limitations. The Agency determined although Complainant believed the intent of the agreement was that he would not be worked outside of his limitations, no such Agency obligation was contained in the subject agreement.
With respect to provision 1, the Agency noted that the named Agency official no longer works for the Agency; however, the Human Resources Service Center verified that Complainant has an active CHART account. The Agency stated that in regard to provision 2, on April 17, 2009, a recommendation for an incentive award was submitted for Complainant's efforts in finding the hole on the deck plate. Specifically, the Agency noted that Complainant was given an eight-hour time off award effective May 12, 2009.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that he informed his supervisor numerous times "that he was working me beyond my physical limitations which I had give copies of to him, but was continually assigned jobs outside my limitations to perform." Complainant further states "I, [Complainant] do not contest the points of the contract . . . that the Dept, of Navy arranged appointment with [a named Agency official] or that [Complainant] was recognized with a Safety Act Award."
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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).
The record supports a finding that the Agency complied with provisions 1 and 2 of the settlement agreement. It does not appear that Complainant disputes this determination. Instead, we find that Complainant's August 2, 2011 correspondence raises a separate complaint regarding incidents occurring after execution of the settlement agreement (working outside of his limitations).
EEOC Regulation 29 C.F.R. � 1614.504(c) provides that allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints. Therefore, we find that the Agency should have not addressed Complainant's allegation that he was assigned work outside of his limitations herein as a breach claim, but rather as a separate complaint.
With regard to provisions 1 and 2 of the settlement agreement, the Agency's finding of no breach was proper and is AFFIRMED. However, the matter relating to Complainant being purportedly directed to work outside of his limitations is nevertheless REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER
Within ten (10) calendar days of the date this decision becomes final, the Agency is ordered to notify Complainant that his claim regarding his assignments outside of his limitations will be processed as a separate complaint under 29 C.F.R. � 1614.106. A copy of the notice must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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 (T0610)
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 (Z0610)
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
February 29, 2012
__________________
Date
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0120120132
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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