0120064583
04-29-2008
Clifford M. Gonzales, Complainant, v. Ed Schafer, Secretary, Department of Agriculture (Food and Safety and Inspection Service), Agency.
Clifford M. Gonzales,
Complainant,
v.
Ed Schafer,
Secretary,
Department of Agriculture
(Food and Safety and Inspection Service),
Agency.
Appeal No. 0120064583
Agency No. FSIS-2005-00086
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) dated June 22, 2006, finding that it was in compliance
with the terms of the May 25, 2005 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:
The agency agrees to elevate the past two performance ratings
to the superior level. The two ratings cover the performance
cycle from October 2003 to June 2004 and July 2004 to June 2005.
By letter to the agency dated November 9, 2005, complainant alleged that
the agency breached the settlement agreement, and requested that the
agency reinstate his underlying complaint. Specifically, complainant
maintained that although the agency had changed his ratings to superior,
the narratives accompanying the ratings do not reflect a superior rating.
Complainant further maintained that the rating period for the evaluation
was expanded to include the period from the end of February 2005 to the
end of June 2005.
In its June 22, 2006 FAD, the agency concluded that it did not breach the
agreement because it elevated complainant's two performance appraisals to
the superior level. The agency further determined that the rating periods
for the evaluations were consistent with the terms of the agreement.
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 O 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, the agency agreed to elevate complainant's appraisal
ratings to superior for the performance periods October 2003 to June 2004
and July 2004 to June 2005. The record contains copies of new performance
appraisals for performance periods October 2003 to June 2004 and July
2004 to June 2005. The new appraisals reflect that the agency changed
complainant's overall rating to "superior" for both ratings periods.
Complainant contends that the narratives accompanying the ratings do
not reflect a superior rating. However, the terms of the agreement do
not provide that the agency will change the narratives accompanying the
ratings. See Cheryl H. Newsome v. Department of the Treasury, EEOC Appeal
No. 01A00742 (April 28, 2000) (finding comments in appraisal narrative
did not constitute breach where settlement agreement only provided that
complainant would receive an overall rating of "fully successful").
Moreover, we do not find the narratives to be inconsistent with an
overall superior rating. Complainant further alleges that the agency
expanded the evaluation period. A review of the updated appraisals
reveals that the two appraisals cover the time period specified in the
settlement agreement. Thus, we find that the agency properly found no
breach of the agreement.
CONCLUSION
Accordingly, the Commission AFFIRMS the final agency decision.
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
__April 29, 2008________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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