01a03650
07-25-2000
Joe Ellis v. Department of the Army
01A03650
July 25, 2000
.
Joe Ellis,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A03650
Agency No. AVHEP-1-98-0510020
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated March 14, 2000, finding that it was in
compliance with the terms of the June 24, 1998 settlement agreement into
which the parties entered.<1> See 64 Fed. Reg. 37,644, 37,659, 37,660
(1999)(to be codified and hereinafter referred to as EEOC Regulation 29
C.F.R. � 1614.402); 29 C.F.R. � 1614.504(b); and 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
The settlement agreement provided, in pertinent part, that:
(1) The agency will detail the employee to the position of Engineering
Equipment Operator, WG-5716-10/5;
(2) The employee will be paid at the hourly rate of pay of an
Ironworker-Rigger;
(3) If the employee performs the detail satisfactorily, he will be
reassigned to the Engineering Equipment Operator position permanently
under the terms that follow:
(4) The employee will be reassigned at his current rate of pay as an
Ironworker-Rigger at the time of the reassignment;<2>
(5) In accordance with 5 C.F.R. 536, pay raises will be limited to
50 percent of any comparability adjustment until the top rate of the new
lower grade equals or exceeds the pay the employee was receiving before
the change to lower grade. At that point pay retention will cease; and,
In accordance with existing collective bargaining agreements, the
employee will be represented by the National Federation of Federal
Employees upon his reassignment.
By letter to the agency dated September 16, 1999,<3> complainant alleged
that the agency breached the settlement agreement, and requested that
the agency implement the its terms. Specifically, complainant alleged
that the agency failed to pay him at the Ironworker-Rigger's double
time rate for overtime; and that the agency instead only paid him the
one and one-half time rate earned by Engineering Equipment Operators.
Complainant argues that the phrase �current rate of pay� used in the
settlement agreement includes the double time rate for overtime.
In its March 14, 2000 decision, the agency stated that the phrase
�current rate of pay� is a �basic rate of pay� and does not include
or address compensation for overtime. The agency further explains that
although complainant was compensated at a double time rate for overtime
during his detail, this arrangement ceased when he was reassigned to
the position of Engineering Equipment Operator because under both the
union agreement and federal regulations, this position only carried a
time and one-half rate for overtime.
The regulation set forth at 64 Fed. Reg. 37,644, 37,660 (1999)(to be
codified and hereinafter referred to as 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).
In the instant case, both parties agree that the settlement agreement
is silent regarding the rate of overtime in the reassigned position,
such that the intent of the parties must otherwise be determined.
In complainant's appeal statement, complainant argues that he and his
attorney verbally informed the agency's representatives that it was their
understanding that the double time rate for overtime would continue
to apply to the Engineering Equipment Operator position. The agency
representatives deny that overtime was discussed during the settlement. To
the extent that complainant and his attorney interpreted the settlement
agreement to mean that he should be paid at an overtime rate not approved
for his new position, and verbally shared this interpretation with
the agency representatives, they should have reduced it to writing as
part of the settlement. Jenkins-Nye v. General Service Administration,
EEOC Appeal No. 01851903 (March 4, 1987). Moreover, we find that the
agency's interpretation of �current rate of pay� as �basic rate of
pay� is reasonable, and its use of the one-half time overtime rate for
complainant's new position is entirely consistent with accepted personnel
practices. Accordingly, for the reasons set forth above, we find that
the settlement agreement at issue has not been breached by the agency,
and we AFFIRM the agency's decision finding no settlement breach.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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, Acting Director
Office of Federal Operations
July 25, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Ironworker-Rigger positions have a higher rate of pay than do Engineering
Equipment Operator positions.
3According to the record, complainant also claimed breach for the same
reason in letters to the agency dated October 14, 1999, and January 10,
1999.