01980668
10-20-1998
Sherman L. Atwood, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Sherman L. Atwood, )
Appellant, )
)
v. ) Appeal No. 01980668
) Agency Nos. 96-4219
Robert E. Rubin, ) 96-4156
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Appellant timely appealed the agency's decision finding that it had
complied with 29 C.F.R. �1614.504. See 29 C.F.R. �1614.402, .504(b);
EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency breached the settlement
agreement.
BACKGROUND
Appellant filed two formal EEO complaints that were subsequently
resolved by a settlement agreement that the parties entered into on
October 18, 1996. The agreement stated in relevant part that:
1. The Agency agrees that it will not reassign [appellant] outside the
commuting area of Phoenix, Arizona and will allow [appellant] to remain
in the Office of the Resident Agent in Charge, Phoenix, Arizona until
March 22, 1998.
2. [Appellant] will accept a downgrade from his position as Group
Supervisor, GS-1811-14, with no save pay, to the position of Special
Agent, GS-1811-12-10. Although [appellant] will assume the duties of a
Special Agent upon execution of this agreement, his reduction in pay will
not take effect until December 8, 1996. [Appellant] understands that as a
Special Agent, he will occupy space comparable to other non-supervisory
agents in his office, he will be provided parking comparable to other
non-supervisory agents in his office, and his equipment will equate with
that of other non-supervisory agents in his office.
...
5. [Appellant] agrees to voluntarily retire from the U.S. Customs Service
on March 22, 1998. ...
...
11. All parties understand that it is the policy of the U.S. Customs
Service to provide equal opportunity for all its employees without
regard to race, religion, color, sex, age, national origin, handicapping
condition, or in reprisal for opposition to discriminatory practices or
participation in the EEO process. ...
By memorandum dated July 25, 1997, appellant requested that the Special
Agent in Charge, Arizona District, inform him whether he had been
considered for any of the GS-1811-13 promotions that occurred in the
Arizona District since January 1997.
By letter dated August 5, 1997, the agency responded that there has been
only one GS-1811-13 vacancy in the Phoenix Office. The agency stated
that although appellant is considered an alternate staffing candidate
based on his previous grade levels, he must first express his desire to
be considered for a GS-1811-13 position.
By letter dated August 22, 1997, appellant, through his attorney, notified
the agency that it had not complied with the settlement agreement.
Appellant stated that he clearly expressed a desire to management that
he be considered for a GS-13 position in the Arizona District's Phoenix
Office. Appellant noted that during settlement negotiations, he was
informed by the agency that there were no GS-13 positions available in
Phoenix, and that the agency did not plan to increase the number of GS-13
positions in Phoenix. Appellant further claimed that the agency is either
purposely or negligently hindering his ability to learn about potential
GS-13 positions. According to appellant, he requested information from
agency Headquarters and his first-line supervisor regarding vacancies,
qualifications, and application procedures. Appellant stated that in
June 1997, the Phoenix Office distributed test packages related to GS-13
positions to all of the GS-12 agents except him. Appellant alleged
that the agency's actions were in violation of provision 11 of the
settlement agreement.
By letter dated September 14, 1997, appellant again notified the
agency that it had failed to comply with the settlement agreement.
Appellant claimed that although the agency was fully aware of his
requested accommodation to be placed into a GS-1811-13 position in the
Phoenix Office, the agency retaliated against him by not considering him
for a recently filled GS-1811-13 position in Phoenix. Appellant also
claimed that the agency retaliated against him by either purposely or
negligently hindering his ability to learn about potential GS-1811-13
vacancies in Phoenix.
On October 7, 1997, the agency issued a final decision wherein it
determined that it had not breached the settlement agreement. The agency
informed appellant that since he is alleging reprisal, this matter should
be processed as a new complaint.
On appeal, appellant reiterates the points raised in his aforementioned
correspondence with the agency. Appellant also argues that the agency
was clearly aware of his desire to receive a GS-1811-13 position.
Appellant states that this is evident based on the agency's offer to
him of a GS-1811-13 position in the Nogales, Arizona post of duty.
In response, the agency asserts that appellant is untimely in his
allegation that the settlement agreement was breached. The agency argues
that appellant's appeal sets forth several dates ranging from February
1997 to August 1997, wherein appellant alleges noncompliance with the
settlement agreement. The agency maintains that the instant appeal was
not filed until October 28, 1997, over two months after appellant's last
correspondence with the agency. With regard to the merits of appellant's
claim that the agreement was breached, the agency asserts that it did
not promise in the settlement agreement that appellant would receive a
promotion to a GS-1811-13, Senior Special Agent position. The agency
notes that the agreement is silent regarding any future promotion.
The agency argues that in light of the high degree of specificity of
other provisions of the settlement, the lack of a reference to a future
promotion is evidence that this additional benefit was not contemplated
by the parties. Further, the agency maintains that it is irrelevant
that a GS-13 vacancy became available five months after the settlement
agreement was executed. The agency states that such information was
not available at the time the agreement was executed. Additionally,
the agency asserts that appellant has not been prevented from competing
for any promotion. The agency claims that all vacancy announcements
are posted on the e-mail system, which is accessible to all employees.
ANALYSIS AND FINDINGS
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.
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or final decision, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance
within 30 days of when the complainant knew or should have known of the
alleged noncompliance. The complainant may request that the terms of
the agreement be specifically implemented, or, alternatively, that the
complaint be reinstated for further processing from the point processing
ceased.
Settlement agreements are contracts between appellant and the agency and
it is the intent of the parties as expressed in the contract, and not
some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In interpreting settlement agreements, the Commission
has applied the contract principle known as the "plain meaning rule"
which holds that where a writing is unambiguous on its face, its
meaning is determined from the four corners of the instrument without
resort to extrinsic evidence. Smith v. Defense Logistics Agency,
EEOC Appeal No. 01913570 (December 2, 1991). Moreover, other standard
contractual requirements such as the necessity of consideration, apply
in this context. Collins v. United States Postal Service, EEOC Request
No. 05900082 (April 26, 1990); Shuman v. Department of the Navy, EEOC
Request No. 05900744 (July 20, 1990); Roberts v. United States Postal
Service, EEOC Appeal No. 01842193 (May 9, 1985).
In the case at hand, appellant alleges that the agency breached the
settlement agreement by not considering him for the GS-13 position
in the Phoenix Office and by hindering his opportunities for learning
about available positions. Appellant maintains that these subsequent
actions constituted reprisal in violation of provision 11 of the
settlement agreement. EEOC Regulation 29 C.F.R. �1614.504(c) provides
that allegations that subsequent acts of discrimination violate a
settlement agreement shall be processed as separate complaints under
29 C.F.R. �1614.106 or �1614.204, as appropriate, rather than under
�1614.504. We find that the alleged subsequent acts of reprisal must
be processed as a separate complaint. Although the agency correctly
stated that appellant should raise these matters with an EEO Counselor, it
nonetheless improperly issued a determination with regard to appellant's
allegations of breach. Accordingly, the agency's decision finding no
breach of the settlement agreement is VACATED and this matter is hereby
REMANDED for further processing in accordance with the ORDER below.
ORDER
1. The agency is ORDERED to process the remanded allegations in accordance
with Subpart A of 29 C.F.R. Part 1614. Within thirty (30) calendar
days of the date this decision becomes final, the agency shall notify
the appellant in writing that the agency has assigned an EEO Counselor
to counsel the appellant regarding the allegations of discrimination.
Within sixty (60) calendar days of the date this decision becomes
final, the agency shall issue to the appellant a notice of his right
to file a formal discrimination complaint unless the appellant agrees
in writing to extend the counseling period for no more than sixty (60)
calendar days. Alternatively, the appellant may agree to a ninety (90)
calendar day counseling period if the agency has an established dispute
resolution procedure.
2. The agency is ORDERED to send to the Compliance Officer as referenced
below, a copy of the agency's notice to the appellant of the assignment
of an EEO Counselor, a copy of the agency's notice to the appellant of
his right to file a formal complaint, and a copy of any written agreement
signed by the appellant that extends the time period for EEO counseling.
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:
Oct. 20, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations