01A11488_r
09-06-2002
Stephen J. Deatherage, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Stephen J. Deatherage v. Department of Defense
01A11488
September 6, 2002
.
Stephen J. Deatherage,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A11488
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated November 1, 2000, finding that it was
in compliance with the terms of a July 20, 1999 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The July 20, 1999 settlement agreement provided, in pertinent part, that:
(1) Management agrees to designate the Complainant as the Quality
Assurance Evaluator for the Pest Management Plan.
(2) Management agrees to provide support to the Complainant during the
Complainant's interactions with representatives of federal, state and
local regulatory agencies, DLA, DESC staff elements and the environmental
office of the military services.
(3) Management agrees to allow the Complainant to work autonomously and
independently on project[s] the Complainant is responsible for performing
and/or managing in his assigned regions of responsibility (Norfolk &
EPA Region III).
(4) Management agrees to assign to the Complainant the first-line
project manager responsibility for the GOCO facility at DFSP Searsport.
Such management of the Searsport facility will be subject to routine
oversight by an assigned team leader.
Management agrees to meet with the Complainant on a periodic basis to
discuss the Complainant's work assignments and duties and whether the
work being performed by the Complainant is at the GS-13 level thus
warranting a promotion to that grade.
Management also agrees to keep the Complainant appraised of all
opportunities within the office for promotion to the GS-13 level and
to give the Complainant full consideration for those opportunities.
In an undated letter received by the agency on February 11, 2000,
complainant alleged that the agency was in breach of the settlement
agreement. Specifically, complainant alleged that the agency breached
the following provisions: provision (1) when it failed to designate
him as Quality Assurance Evaluator; provision (2) because discordance
between DESC elements have not been resolved; provision (3) when
management assigned other staff key tasks in complainant's region (EPA
region III); provision (4) when routine oversight by team leader was
interpreted differently by management; and provision (5) when discussions
on complainant's performance have been �denigrating and one-sided.�
The record reflects that following complainant's initial claim
of settlement breach as identified above, the agency conducted an
investigation to clarify complainant's claims and to provide him with
the opportunity to show examples of purported breach. This investigation
concluded in September 2000.
In its FAD, the agency acknowledged that it breached provision (1) when
it found no evidence that management has designated complainant as the
Quality Assurance Evaluator for the Pest Management Program, and/or
such designation was made within 14 calendar days of the agreement.
The agency determined that provision (1) can be quickly remedied
because the Chief is prepared to sign such a notice of designation.
Complainant was given the opportunity to have this matter effected in
lieu of reinstating his original complaint of discrimination.
Regarding provision (2), the agency determined that there was no breach,
by finding that it did not commit management to resolve discordance
between DESC elements.
Regarding provision (3), the agency determined that there was no breach
because the provision does not state that all projects within Norfolk or
EPA Region III are complainant's exclusively to perform and/or manage.
In addition, the agency determined that there is nothing in the language
of provision (3) that provides that all projects within Norfolk and EPA
Region III will be assigned to complainant.
Regarding provision (4), the agency noted that when providing
clarification for this breach claim, complainant asserted that
management has expanded �routine oversight� as identified in this
provision, to a level that complainant's team leader does not feel is
legal because complainant's position did not include supervisory duties.
Complainant further claimed that agency management wanted the team leader
to negotiate work orders and directed complainant to complete tasks.
The agency determined that complainant did not show that he had not been
assigned first-line management responsibility. The agency noted that
complainant objected to the scope of oversight functions assigned to
the team leader. The agency determined, however, that phrase �routine
oversight� in provision (4) is not limited to a precise list of activities
or interventions.
The agency found no breach of provision (5) of the agreement because
complainant's remediation task associated with the petroleum cleanup
project claim was not addressed in the agreement. Further, the agency
noted complainant's statements that the Chief made denigrating and
one-sided statements and pointed out that there is nothing in provision
(5) that addresses the manner in which the Chief would discuss his
work performance with him and determined that there was no violation of
provision (5).
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).
Provision (1)
Upon review of the record, we find that the agency properly found breach
of provision (1) of the settlement agreement. There is nothing in
the record to indicate that the agency designated complainant as the
Quality Assurance Evaluator for the Pest Management Plan contemplated
in provision (1). To remedy a finding of breach, the Commission may
order reinstatement of the underlying complaint, or enforcement of
agreement's terms. See 29 C.F.R. � 1614.504(c). We determine that the
appropriate remedy is to order the agency to comply with provision (1)
of the agreement.
Provision (2)
After a review of the record, we find that the agency did not breach
provision (2) of the settlement agreement. Specifically, we find
that the language cannot be read as obligating the agency to resolve
discordance between DESC elements. Further, we find that complainant
did not allege that management has failed to support him during his
interactions with representatives of federal, state, and local regulatory
agencies, DLA, DESC staff elements, and the environmental office of the
military services.
Provision (3)
Regarding provision (3), we find the agency properly found no breach.
We find the language in provision (3) states that complainant is
responsible for performing and/or managing in his assigned regions of
responsibility (Norfolk & EPA Region III). If complainant had intended
that the settlement agreement assign him with all projects within Norfolk
and EPA Region III, he should have included such a provision in the
settlement agreement. See Jenkins-Nye v. General Service Administration,
EEOC Appeal No. 01851903 (March 4, 1987).
Provision (4)
Regarding provision (4), we find that the agency properly found no breach.
We find that provision (4) states such management of Searsport facility
will be subject to routine oversight by an assigned team leader.
The record supports a determination that complainant was subjected to
routine oversight, in accordance with provision (4).
Provision (5)
Finally, we determine that the agency did not breach provision (5).
Complainant does not contend that the agency did not meet with agency
officials on a periodic basis to discuss work assignments and duties,
which is the sole affirmative agency obligation identified in this
provision.
Accordingly, the agency's finding of breach of provision (1) of the
settlement agreement is AFFIRMED and this matter is REMANDED to the
agency for further processing in accordance with the ORDER. The agency's
decision finding that it did not breach provisions (2) through (5)
of the settlement agreement is AFFIRMED.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall implement provision (1) of the settlement agreement.
Specifically, the agency is ordered to designate complainant as the
Quality Assurance Evaluator for the Pest Management Plan pursuant to
provision (1) of the agreement; and the agency shall notify complainant
that provision (1) is being implemented. A copy of the agency's notice
to complainant must be sent to the Compliance Officer as referenced below.
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
September 6, 2002
__________________
Date