01A04900_r
12-09-2002
Gary D. Bradham, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Gary D. Bradham v. Department of the Army
01A04900
December 9, 2002
.
Gary D. Bradham,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A04900
Agency No. BPDWFO9906J0120
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated June 5, 2000, finding that it was in compliance
with the terms of an August 25, 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 August 25, 1999 settlement agreement provided, in pertinent part,
that:
(a) Within thirty days following the signing of this agreement, the Deputy
Director/Directorate of Public Safety agrees to review the possibility
of establishing a position at the GS-09 level to serve essentially as
the lead and/or senior Fire Inspector for the fire inspectors assigned
at Ft. Stewart and Hunter Army Airfield. If this review reveals that
establishing such a position would represent a cost-effective improvement
for his organization, the Deputy Director agrees to request such action
through appropriate and/or required Civilian Personnel procedures.
If Personnel approves the action and such a position is, in fact,
established, and the Directorate of Public Safety is given the authority
to fill the position, the Directorate of Public Safety agrees to afford
the complainant priority consideration for promotion to this position.
It is understood and agreed that there is no guarantee that such a
position will be established nor does priority consideration guarantee
that the complainant would be selected;
If the Directorate of Public Safety determines that it is not
advantageous for his organization to establish a position as discussed
in paragraph a above, he agrees to offer the Complainant placement
(via change to lower grade) in a vacant firefighter, GS-5, position
to be effective as soon as the appropriate administrative procedures
can be completed through Civilian Personnel. While assigned in this
GS-05 position, the complainant's desire to have Sundays as a regular
off-duty day for religious reasons will be accommodated unless this is
determined to represent an undue hardship for management.
For a one-year period following the complainant's placement (or offer
should he decline) in the GS-05 position, the Directorate of Public
Safety agrees to afford the complainant a one-time priority consideration
for the next available firefighter position at the GS-06 or GS-07 level.
Again, it is understood and agreed that there is no guarantee that
such a position will occur nor does priority consideration guarantee
the complainant will be selected.
By letter to the agency received on February 22, 2000, complainant alleged
that the agency breached the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency failed to provide complainant with Sundays off
for the GS-5 position, denied complainant a GS-9 position, and failed
to offer complainant the next GS-6 position.
In its June 5, 2000 decision, the agency concluded that it substantially
complied with the terms of the agreement. Specifically, the agency found
that complainant was placed in a GS-5 firefighter position and was able
to obtain Sundays off through the cooperation of a coworker. Further,
the agency found that although the agency failed to provide complainant
with priority consideration for the next available position following
his placement in a GS-5 position, it substantially complied with the
agreement by referring and submitting complainant for consideration
for a GS-7 firefighter position in Fort Stewart, Georgia, and a GS-6
position at Hunter Army Airfield.
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 (c)
Provision (c) requires that for a one year period following complainant's
placement in the GS-05 position (or offer should he decline the GS-05
position) identified in provision (b) of the settlement agreement,
the agency Directorate of Public Safety had an affirmative obligation
to afford complainant a one-time priority consideration for the next
available firefighter position at the GS-06 or GS-07 level. In its
final decision, the agency acknowledged that complainant was in fact
not given priority consideration for the next available position.
The agency stated, however, that �every attempt was made to correct this
error.� The agency specifically noted that it substantially complied
with provision (c) by affording complainant priority consideration for a
subsequent position. However, we find that the agency's attempt to comply
with provision (c) by giving complainant priority consideration for a
position subsequent to the �next available� position did not cure breach
of provision (c) of the settlement agreement. Accordingly, the Commission
finds that the agency breached provision (c) of the settlement agreement.
Because we find that the appropriate remedy in this case is reinstatement
of the underlying complaint from the point where processing ceased,
we determine that it is unnecessary to address complainant's remaining
breach allegations.
Accordingly, the agency's finding of no breach of provision (c) of the
settlement agreement is REVERSED. This matter is REMANDED to the agency
for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to reinstate complainant's underlying EEO complaint
from the point processing ceased, in accordance with 29 C.F.R. � 1614.108.
The agency shall acknowledge to complainant that it has resumed processing
at the point processing ceased within thirty (30) calendar days of the
date that this decision become final.
A copy of the agency's letter of acknowledgment 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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
December 9, 2002
__________________
Date