01A23365_r
04-10-2003
Larry L. Price, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.
Larry L. Price v. Department of Housing and Urban Development
01A23365
April 10, 2003
.
Larry L. Price,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01A23365
Agency Nos. KC 99 01, KC 00 01, KC 00 03, KC 00 05, KC 02 01
DECISION
Complainant filed an appeal with this Commission from a final decision
by the agency dated May 9, 2002, finding that it was in compliance with
the terms of the February 13, 2002 settlement agreement into which the
parties entered.
The settlement agreement provided, in pertinent part, that:
(1) Within 60 calendar days of the execution date of this Agreement:
a) HUD shall retroactively promote Complainant to a Construction Analyst
position, GS-0828-13, Step 6, effective date of this promotion to be
January 4, 1998, with a duty assignment in the Office of Public and
Indian Housing, Real Estate Assessment Center, [REAC] outstationed in
the HUD Office, St. Louis, Missouri.
HUD shall process a within grade increase to award Complainant a Step 7,
effective January 2, 2000.
HUD shall award Complainant a Quality Step Increase from GS-13, Step 7
to GS-13, Step 8, effective February 13, 2000, the first pay period at
the end of the January 31, 2000 rating year.
HUD shall make Complainant whole, based on the personnel actions
identified in subsections a), b), and c) of this Fourth Section, by
paying him back pay and interest calculated in accordance with the Back
Pay Act, 5 USC Section 5596 and implementing OPM and FRTIB regulations,
5 CFR Sections 550.801 to 550.807 and 1605.4. . . .
Complainant understands and accepts the up to 80% travel requirement of
the Construction Analyst position to which he is being promoted.
By letter to the agency dated April 1, 2002, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency failed to provide him with an office
or work station in the agency's St. Louis field office, that the travel
requirements would require complainant to travel during hours other
than the normal Monday through Friday work week, that he would not be
permitted to return home on weekends, and that his travel assignments
would include areas outside the St. Louis geographic area.
In its May 9, 2002 determination, the agency concluded that it had fully
complied with the terms of the settlement agreement. The agency noted
that complainant expressly agreed to the 80% travel requirement and that
no where in the settlement agreement is the geographic region specified in
which complainant may be asked to travel. Further, the agency explains
that complainant is "outstationed" in St. Louis, Missouri, from the REAC
office of HUD, located in Washington D.C., but would not be associated
with the St. Louis HUD Field Office as he had been for many years.
The agency explains that none of the REAC Construction Analysts are
associated with a HUD field office.
On appeal, complainant additionally argues that the agency has
miscalculated his back pay award in compliance with provision (d).
Complainant argues that the agency's calculations failed to take into
account the quality step increase to GS-13, step 8 as agreed in the
settlement agreement. Thus complainant claims his back pay award has
been shorted by $92 for 24 pay periods, plus interest.
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).
The Commission finds that complainant has failed to show that the
agency breached provision (a) or any other provision of the agreement.
Complainant is ultimately dissatisfied with his duty assignment and
travel requirements. The Commission finds that complainant has failed to
show that his duty assignment and travel assignments (since the agreement
was entered into) were made in violation of the agreement.
On appeal, complainant submits documentation purporting to show that the
agency's calculation of the back pay due complainant under provision (d)
was incorrect. The agency has not addressed complainant's allegations
with respect to provision (d). On remand, we will direct the agency to
determine whether it has fully complied with this provision.
The Commission finds that complainant has failed to show that the agency
breached provision (a) of the settlement agreement. The issue of whether
the agency breached provision (d) of the settlement agreement is REMANDED
to the agency so that the agency may supplement the record and issue a
new determination as directed herein.
ORDER
Within 30 calendar days of the date this decision becomes final the
agency shall:
Supplement the record with evidence showing the agency's calculation of
complainant's back pay as described in provision (d) of the settlement
agreement and showing proof of payment to complainant of the sums
described.
Issue a new determination as to whether the agency has breached provision
(d) of the settlement agreement.
A copy of the agency's new decision must be sent to the Compliance
Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 10, 2003
__________________
Date