01A33887_r
06-29-2004
David Fischer, Complainant, v. John W. Snow, Secretary, Department of the Treasury (U.S. Mint), Agency.
David Fischer v. Department of the Treasury
01A33887
June 29, 2004
.
David Fischer,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury
(U.S. Mint),
Agency.
Appeal No. 01A33887
Agency No. 01-0020B
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated December 17, 2003, finding that it was
in compliance with the terms of the May 27, 2002 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.
Section 1.d. of the settlement agreement provided that the Agency
agreed to:
Give qualified police officers an equal opportunity to rotate into
temporary Sergeant positions and receive temporary promotions where
vacancies exist for a limited period of time prior to completion of
the Position Management Review. Each local facility will determine
how these temporary promotions will be made pursuant to their locally
established procedures.
By letter to the agency dated April 2, 2003, complainant alleged that
the agency was in breach of the settlement agreement and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency breached Section 1.d. of the settlement agreement
when it �passed over� complainant with regard to a temporary Sergeant
vacancy available in March, 2003. In its December 17, 2003 FAD, the
agency concluded that there was no breach of the settlement agreement
and that the agency correctly implemented all of the provisions of the
settlement agreement, including Section 1.d.
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 agreement promises to give qualified police officers an equal
opportunity to rotate into temporary Sergeant position. We note that
the agreement does not specify how complainant will be given an equal
opportunity to rotate into a temporary Sergeant position. Moreover,
we note that the terms of the agreement merely state that all qualified
police officers will be provided the equal opportunity to rotate into
temporary Sergeant positions, and do not provide complainant with any
particular distinctive benefit for withdrawing his complaint beyond
that guaranteed to all �qualified police officers.� Consequently, we
find that provision 1.d. of the agreement is void and unenforceable.
We affirm the agency's conclusion of no breach.
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 (S0900)
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 (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
_June 29, 2004_________________
Date