01972573_r
04-16-1999
Larry Green, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Larry Green, )
Appellant, )
)
v. ) Appeal No. 01972573
) Agency Nos. 93-0021C
) 93-0022C
) 93-2147
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
On January 31, 1997, appellant filed a timely appeal with this Commission
from a letter by the agency dated January 16, 1997, informing him that
although it was investigating whether it was in compliance with the
terms of the September 30, 1993 settlement agreement into which the
parties entered, as 35 days had passed since appellant submitted his
allegations of breach, he was entitled to review by the Commission.
See 29 C.F.R. ��1614.402, .504(b); EEOC Order No. 960, as amended.
The settlement agreement provided, in pertinent part, that in full and
complete settlement of the matters of race, sex and age discrimination,
reassignment and reprisal raised during EEO counseling in the above
referenced complaints:
(1) The Agency will assign [appellant] the second available GM-512-13
Group Manager's position or equivalent in the Employee Plans/Exempt
Organizations (EP/EO) Division in the Atlanta Key District in
metro-Atlanta.
(2) Based upon the pending reorganization/realignment of the EP/EO
Division functions nationwide, and in the Atlanta Key District, it is
understood that there may not be any future Group Manager GM-512-13
vacancies in the EP/EO Division in the Atlanta Key District within
metro-Atlanta. Additionally, future EP/EO Division Group Manager
Vacancies, if any, in metro-Atlanta may be in the Atlanta Service Center
and not the Atlanta Key District based upon the result of the EP/EO
nationwide realignment. If the EP/EO nationwide realignment results
in the relocation to the Atlanta Service Center, then [appellant]
will receive the second available GM-512-13 Group Manager position
or equivalent in the EP/EO Division at the Atlanta Service Center in
metro-Atlanta.
(3) The agreement in paragraph 1 above does not prevent future
reorganization/realignment based on further consolidation(s) or merger(s)
of groups resulting from an increase in the span of control and possible
further reduction(s) in the number of GM-512-13 group manager positions
in the EP/EO Division in the Atlanta Key District in metro Atlanta.
(4) Effective September 19, 1993, [appellant] will be converted to a
funded GS-512-13 Revenue Agent position in the Atlanta POD of the EP/EO
Division, Atlanta Key District. [Appellant] will receive Acting Group
Manager details, as available.
By letter to the agency dated November 21, 1996, appellant initially
asserted that the settlement agreement is void because he received no
consideration for the withdrawal of his complaints of discrimination.
Further, appellant alleged that the agency was in breach of provision
(4) of the settlement agreement. Specifically, appellant alleged that in
the three years that passed since the parties entered into the settlement
agreement, the agency failed to provide him Acting Group Manager details
as they became available. As remedial relief, appellant requested that
his complaints be reinstated from the point processing ceased and that
he be provided a hearing before an EEOC Administrative Judge.
In its January 16, 1997 FAD, the agency indicated only that it was
conducting an inquiry into appellant's allegations of breach. However,
the record contains a February 6, 1997 memorandum from the District
Director from Key District (EP/EO) where appellant was subsequently
transferred, in which the agency asserted that it was in compliance with
provision (4) of the settlement agreement. Specifically, the memorandum
determined that appellant was reassigned to a GS-512-13 revenue agent
position, and that he received acting manager assignments as an Atlanta
Key District employee. After appellant was reassigned into the Review
Staff, the agency asserted that workload priorities precluded him
from being provided acting manager assignments. At the conclusion of
appellant's workload priorities, the agency indicated that he would
again be available for acting manager assignments.
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).
The Commission notes that provisions (1), (2), (3), and (4) of the
above-referenced settlement agreement are identical to that of a
co-worker who settled her complaint at the same time as appellant.
The co-worker also alleged breach, and on appeal, the Commission found
that the parties contemplated the possible reorganization of the Atlanta
EP/EO District when entering into the agreement, and that consideration
was provided by the agency when the co-worker was converted to a funded
GS-512-13 Revenue Agent position. Miller v. Department of the Treasury,
EEOC Request No. 05960622 (December 5, 1997). As the terms of the
two settlement agreements were identical, we find that appellant,
who was also converted to a funded GS-512-13 Revenue Agent position,
was provided consideration for the withdrawal of his complaint.
However, appellant further alleged that he was not provided the acting
manager assignments to which he was entitled under the second part of
provision (4) of the settlement agreement. Although the agency asserted
that appellant was provided such assignments, it did not include in the
record any documentation or other proof in support of its assertion.
Absent this information, the Commission is unable to ascertain whether
the agency's obligations under provision (4) of the settlement agreement
were met.
Accordingly, the agency's decision finding that it was in compliance with
the settlement agreement is hereby VACATED. The complaint is REMANDED
to the agency for further processing in accordance with this decision
and the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall supplement the record with any documentation or other
evidence supporting its determination that it was in compliance with
provision (4) of the settlement agreement.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall issue a notice of processing and/or a new FAD concerning
appellant's allegations of breach.
A copy of the agency's notice of processing and/or new FAD, along with
all supporting evidence, must be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action.
The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
April 16, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations