01995600
04-19-2001
Arthur L. Ward Jr., Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Arthur L. Ward Jr. v. Department of the Army
01995600
April 19, 2001
.
Arthur L. Ward Jr.,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01995600
Agency No. AWGLPI9709H0300
DECISION
Complainant filed a timely appeal with this Commission from an agency
determination finding that it was in compliance with the terms of the
November 24, 1997 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.
The settlement agreement provided, in pertinent part, that:
(1) The agency would conduct a classification audit of all occupations
in series 5784, Pilot, within the USAE Memphis District, including the
position currently held by the complainant;
(2) The agency would complete this audit no later than March 1, 1998; and,
(3) The agency would furnish the complainant with a copy of a job
description for the pilot occupation at each grade level, XH 11/16,
after the completion of the aforementioned audit.
The settlement agreement was amended on March 10, 1998, so as to replace
provision (1) above with a new provision, which was agreed to and
signed by complainant, and which provided that the agency would instead,
�[c]onduct a classification audit of the complainant's position currently
held, series 5784, Pilot at the USAE Memphis District.� By letter to
the agency dated November 18, 1998, complainant alleged that the agency
was in breach of the settlement agreement. He requested that his EEO
counseling resume and that he be provided with the opportunity to file
a formal EEO complaint.
In its decision, the agency concluded that no such breach had occurred
as the required classification audit of complainant's position had
been conducted on February 24, 1998, in advance of the March 1, 1998,
deadline set out in the settlement agreement. It is this determination
which complainant now appeals. In response, the agency reiterates its
contention that the classification audit required by the terms of the
settlement agreement was completed in a timely manner. Written notice
of the completion of the audit, as well as the pilot position job
descriptions required in part (3) of the settlement agreement were
provided to complainant on February 9, 1999. As there was no time
constraint specified in the settlement agreement as to when the
job descriptions for the pilot positions would be made available to
complainant, the February, 1999, date was not untimely.
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. Department of Defense,
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. 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 (5th Cir. 1984).
After a thorough review of the record, the Commission finds that there
has been no breach of the November 24, 1997, settlement agreement, nor
the March 10, 1998 amendment. We find that the agency completed the
classification audit of complainant's position prior to the March 1, 1998
deadline set out in the agreement. As there was no similar deadline as to
when the agency had to provide complainant with the job descriptions for
the pilot occupations, there being provided for him on February 9, 1999,
did not constitute a breach of the settlement agreement. Accordingly,
we hereby AFFIRM the agency's decision to deny the complainant's request
to reinstate his claim from the point processing ceased.
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 (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
April 19, 2001
__________________
Date