0120082965
12-05-2008
Alan L. Richel, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Alan L. Richel,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120082965
Agency No. 05-55-00140
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated June 3, 2008, finding that it was
in compliance with the terms of the March 2, 2007, settlement agreement
into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �
1614.504(b); and 29 C.F.R. � 1614.405.
The March 2, 2007, settlement agreement provided, in pertinent part,
that:
With input from complainant, identify certain industries from which
complainant's client base will be comprised in order to perform his
duties as an International Trade Specialist. To the extent possible
and when they become available, management will provide complainant with
some clients from the Oil and Gas Services, Oil and Gas Equipment, and
Electric Power industry sectors that he previously served. However,
management retains the discretion to make all final decisions with
regard to the subject industries; and any future dissatisfaction,
on complainant's part, of the composition of his client base will not
give rise to an allegation of breach of this Agreement. To the extent
possible, complainant's new industries will be designated within sixty
(60) days of the effective date of this agreement.
Per notice of breach procedures in the settlement agreement, by
e-mail to the agency's Director, Office of Civil Rights and to an EEO
Officer on May 5, 2008, complainant alleged that the agency breached
the settlement agreement.1 Specifically, on May 2, 2008, the agency's
Director, U.S. Commercial Service, Houston, notified complainant that he
was reassigning the industry sectors of industrial chemicals; and pumps,
valves and compressors to others effective May 5, 2008. The notification
explained that there was a significant imbalance in the number of clients
assigned to complainant, that the Director received instructions from
complainant's supervisor to remedy this, and that he consulted the
supervisor before making his recommendations.
On May 4, 2008, complainant sent e-mails to his supervisor and others
objecting to the reassignment of industry sectors. He suggested that
instead he give up sectors of apparel, export trading, automotive,
and processed food, and wrote he could identify more. On May 5, 2008,
complainant's supervisor responded that the Director's reassignment
of industrial sectors still left complainant with the oil and gas
sector clients that were his primary concern regarding what he wanted.
The supervisor declined to change the reassignment decision.
In its June 3, 2008 FAD, the agency concluded that it did not breach the
settlement agreement. It indicated that complainant previously provided
input, referring to an e-mail he sent on January 24, 2008, that he wanted
Houston companies in oil and gas services, oil and gas equipment, and
electric power sectors. It also reasoned that the settlement term in
question had a disclaimer that management retained the discretion to make
all final decisions regarding the industries assigned to complainant,
and any future dissatisfaction on his part on the composition of his
client base would not give rise to an allegation of breach.
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).
We find that the agency did not breach the settlement agreement.
It already had input from him regarding the types of industries he
wished to work with. Further, after complainant was notified of the
reassignment, he informed his supervisor and others of his objections,
and the agency proceeded anyway. Accordingly, complainant has not shown
that he did not provide input.
In his notice of breach, complainant also alleged that the reassignment of
industrial sectors from him discriminated against him based on age, sex,
religion, disability, and reprisal, and he wished to file a complaint
regarding this. Allegations that subsequent acts of discrimination
violate a settlement agreement are to be processed as separate complaints.
29 C.F.R. � 1614.504(c). If complainant has not already been given an
opportunity to file a complaint on this matter, to the extent he wishes
to pursue the industry sector reassignment claim, he is advised to contact
the appropriate Commerce agency EEO counselor within 30 calendar days of
his receipt of this decision. For timeliness purposes, the agency should
consider complainant's May 5, 2008, e-mail to be his initial EEO contact
regarding the discrimination claims therein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 5, 2008
__________________
Date
1 The settlement agreement contained a number of other terms not at
issue here, including a lump sum check of $17,000, and 34.25 hours of
compensatory time.
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0120082965
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082965