Derrick McNeal, Complainant,v.Mike Johanns, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMay 24, 2007
0120062569 (E.E.O.C. May. 24, 2007)

0120062569

05-24-2007

Derrick McNeal, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.


Derrick McNeal,

Complainant,

v.

Mike Johanns,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 0120062569

DECISION

Complainant filed an appeal with this Commission alleging that the agency

was not in compliance with the terms of the October 2, 2003 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 settlement agreement provided, in pertinent part, that:

(1) Offer complainant the position Area Director, GS-401-13, for the

Plant Protection and Quarantine, Safeguarding, Intervention, and Trade

Compliance program in Conyers, Georgia.

By letter to the agency dated November 3, 2005, 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 reassigned him to Raleigh, NC in February 2005.

In a memorandum dated December 5, 2005, the agency concluded that

it was not in breach of the settlement agreement. The agency noted

that complainant still had the title of Area Director, GS-401-13. The

agency explained that complainant was reassigned because of misconduct

allegations and conflicts between him and his staff. Further complainant

was allowed to telework at his request.

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).

In the instant case, complainant was placed in the position in Conyers,

as agreed upon, but was later transferred. The Commission has held

that where an individual bargains for a position without any specific

terms as to the length of service, it would be improper to interpret the

reasonable intentions of the parties to include employment in that exact

position ad infinitum. See Holley v. Department of Veterans Affairs,

EEOC Request No. 05950842 (November 13, 1997); Papac v. Department of

Veterans Affairs, EEOC Request No. 05910808 (December 12, 1991); see

also Parker v. Department of Defense, EEOC Request No. 05910576 (August

30, 1991). In addition, the Commission has held that there is no breach

of a settlement agreement "where an individual has been assigned to a

position pursuant to a settlement agreement, has held the position for a

period of time, and then is excised out of the position because of agency

downsizing that was not anticipated at the time of the agreement." Gish

v. Department of the Army, EEOC Appeal No. 01950923 (August 14, 1995).

In the instant case, circumstances intervened which were unforeseeable

and which required complainant to be detailed to Raleigh, NC. As such,

the Commission does not find that the agency's actions, taken 2 years

later, were in breach of the settlement agreement.1

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

May 24, 2007

__________________

Date

1 In submissions with his appeal, complainant includes documents

indicating that he has filed 2 EEO complaints with the agency regarding

related matters. They are complaint numbers APHIS-2005-00609 and

APHIS-2005-00771. He raises allegations that the agency is not processing

his complaints. The agency is reminded of its responsibility to timely

process complaints in accordance with 29 C.F.R. � 1614.

??

??

??

??

2

0120062569

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

4

0120062569