0120113816
11-20-2012
Ravinder P. Lall, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Ravinder P. Lall,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120113816
Agency No. ARAPG11JAN00501
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated July 6, 2011, finding that it was in compliance with the terms of the 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Chemical Engineer at the Agency's ECBC Research and Technology Directorate, Aberdeen Proving Ground facility in Aberdeen, Maryland.
On March 25, 2011, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
(3a) Performance Evaluation. The Complainant desires a higher level review. . . The Agency, by and through [named official] agrees to review Complainant's justification, along with the performance evaluation and any additional input from Complainant's 1st and 2nd line supervisors, and determine whether or not Complainant's performance evaluation should be changed to "successful" within fifteen calendar days from the date [the named official] receives the Complainant's justification, he will issue the Complainant a written decision regarding whether or not the performance evaluation will be changed. The Complainant understands that this term does not guarantee any particular out resulting from this higher level review.
(3b1) Technical Paper: The Agency agrees to provide the Complainant a written explanation if his paper is rejected for publication during any level of the review process. This written explanation will be provided to Complainant within thirty calendar days from the date the paper is rejected.
(3b2) The Agency, by [named official], agrees to . . . determine why the Complainant's Chemical Biological Defense presentation . . . was omitted from the proceedings of a [specified conference] held in Orlando, Florida in April 2009, and what, if anything, the Complainant can do to improve his paper for inclusion in the proceedings. [The named official] shall provide the Complainant his written findings on this matter.
(3d) Detail: The Complainant desires a temporary detail away from his current branch. If the Complainant provides [the named official] a proposal for a detail within another organizational unit within the US Army Research, Development, and Engineering Command . . . the Agency . . . agrees to process the proper documentation to effectuate the detail if the detail does not violate any civilian personnel policies, rules or regulations.
(3e) Telework Agreement: The Agency agrees to permit the Complainant to submit a telework [proposal] . . . The proposal must adhere to all of the requirements and procedures contained in the telework policy. . . The Complainant agrees and understands that this term does not guarantee his telework proposal will be approved. The Agency agrees to follow the process outlined in the ECBC telework policy.
(3f) Sick Leave: The Agency agrees to review whether the Complainant was charged sick leave which he did not take and report these findings to the Complainant within fifteen calendar days from receiving the Complainant's documentation.
By letter to the Agency dated June 3, 2011, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency "did not work in good faith" and failed to meet with Complainant in accordance with the settlement agreement. Complainant listed six events, but he did not explain how the various emails or meeting notations violated the terms of the agreement. He also did not request enforcement of the agreement or reinstatement of his complaint.
In its July 6, 2011 FAD, the Agency concluded that it was in compliance. The Agency reasoned that it provided Complainant with a written 36-page response detailing the actions that the Agency took to implement each of the terms of the Agreement. The Agency stated that it provided Complainant with a review of his performance rating, but concluded that the rating should stand. It did not grant the telework because it was precluded by the Agency rules. The Agency concluded that Complainant had not provided any information in support of his claim of non-compliance.
On appeal, Complainant disagrees with the Agency's decision that the performance rating should stand.1 He also references new claims of discrimination which are based on actions that occurred after the signing of the subject settlement agreement. These subsequent actions are already the subject of a separate Agency complaint ARAPG11AUG03573.2
ANALYSIS AND FINDING
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).
In the instant case, we find that the record shows that the Agency met its obligations.
(3a) Performance Evaluation. The Agency reviewed Complainant's justification, but determined that the rating should remain unchanged. As stated in the agreement, this term did not guarantee any particular result from the higher level review.
(3b1) Technical Paper: The Agency provided Complainant a written explanation as to why his paper was not accepted because it appeared to be duplicative of an earlier submission.
(3b2) The Agency determined why Complainant's Chemical Biological Defense presentation was not included at the 2009 conference and provided Complainant with written findings. Complainant disagrees with the feedback.
(3d) Detail: This provision was contingent on Complainant providing a proposal for a detail within another organizational unit. Complainant did not provide the proposal.
(3e) Telework Agreement: The Agency telework policy restricts telework. Because Complainant's rating was less than successful, he was ineligible for telework in accordance with the telework policy.
(3f) Sick Leave: The Agency reviewed Complainant's record to ascertain whether he was charged sick leave which he did not take. The Agency reported its findings to the Complainant.
In summary, the Agency provided Complainant with a higher level review of his performance rating, provided an explanation as to why his technical paper was not selected, and gave consideration to Complainant's request to telework and for a review of his sick leave usage. Although it appears that the Agency's actions did not fall within the time frames specified in the agreement, the record shows that the terms were implemented prior to the filing of this appeal. Based on the foregoing, we find that the Agency did not breach the subject agreement. Accordingly, we AFFIRM the Agency's final decision.
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 tends 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), at 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 (S0610)
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 (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
November 20, 2012
__________________
Date
1 We have been informed that the law firm and attorney (noted on Complainant's notice of appeal) do not represent Complainant.
2 Complainant also raises his termination letter, dated May 3, 2012, in submissions to the Commission. To that extent, Complainant must raise the matter with an EEO counselor if he wishes to pursue the matter. We cannot address the issue within the instant appeal.
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0120113816
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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