Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 7, 2013

0120113490 (E.E.O.C. Mar. 7, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

John M. McHugh,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120113490

Agency No. ARSILL10MAR00853

DECISION

Complainant filed a timely appeal with this Commission from a final decision by the Agency
dated February 22, 2013, 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 Supply
Technician at Fort Sill in Oklahoma. Believing that the Agency subjected him to unlawful
discrimination when he was not selected for the Position of General Supply Specialist (Property
Book), GS-2001-09, Complainant contacted an Agency EEO Counselor to initiate the EEO
complaint process. On May 13, 2010, Complainant and the Agency entered into a settlement
agreement to resolve the matter. The settlement agreement provided, in pertinent part, that the
agency would:

Give Complainant priority consideration for positions within the Directorate of
Logistic, IMCOM, Fort Sill, Oklahoma. Priority consideration means from the
effective date of this Agreement that the Agency will refer Complainant to the selecting
official and grant Complainant consideration for the first vacant position selected by the
DOL Director, in his sole and absolute discretion for a period of twelve (12) months,
for which all the following have occurred:

i. The position is included on the list of positions and grades documented by
Complainant as those for which he wishes to be considered in regards [sic] to this
settlement.
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ii. Complainant meets all qualification requirements, including both those established by
the US Office of Personnel Management and those established for the specific vacancy;

iii. There is no candidate entitled to consideration based on eligibility for a higher
priority program (e.g., DoD Priority Placement Program, Reemployment Priority,
etc.); and

iv. There is no other circumstance surrounding the fill of the position that the Director,
Fort Sill DOL, in his absolute and sole discretion, believes would create a situation
whereby the applicant should not receive fair consideration.

At Complainant’s suggestion, the following list of positions for which he wished to be
considered was included in the settlement agreement

General Supply Specialist, GS-2001-07/09
Supply Management Specialist, GS-2003-07/09
Supply Technician, GS-2005-07/09
Logistics Management Specialist, GS-0346-07/09

On April 15, 2011, the Agency offered Complainant the position of Supply Technician, Grade
7, Step 1. On April 18 or 19, 2011, Complainant rejected the Agency’s offer. On April 25,
2011, Complainant alleged that the Agency was in breach of the settlement agreement because
it had offered him a GS-7, Step 1 position, rather than a GS-9 or GS-7, Step 6 position and
requested that the Agency reinstate his EEO complaint. In its June 3, 2011 FAD, the Agency
concluded that it had not breached the settlement agreement. From that decision, Complainant
brings the instant appeal.

ANALYSIS

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).

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In the instant case, Complainant contends that the Agency breached the settlement agreement
by failing to offer him a position at Grade 9 or the equivalent. Complainant’s position is not
well taken. The settlement agreement explicitly provides that one of the positions sought by
Complainant was “Supply Technician, GS-2005-07/09." The Agency substantially performed
its obligations under the settlement agreement when it offered Complainant the position of
Supply Technician at the Grade 7, Step 1 level. Complainant argues that the terms of the
settlement agreement did not conform to his expectations about the pay level he would receive
in the position he was to be offered. As noted above, Complainant’s unexpressed intentions
have no bearing on the contractual obligations of the parties to the settlement agreement.
Those obligations are set forth in the settlement agreement. The agreement contemplates that
the Agency would consider Complainant for a position graded in the 7 to 9 range. The offer
the Agency made to Complainant, a position at Grade 7, complied with that contractual
provision. The Agency correctly concluded that it did not breach the settlement agreement.

CONCLUSION

For the foregoing reasons, the Agency’s final decision finding that it did not breach the
settlement agreement is AFFIRMED.

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), 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
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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

March 7, 2013
Date