01A13835_r
06-27-2002
Gustav G. Siegel, III, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Gustav G. Siegel, III v. Department of the Treasury
01A13835
June 27, 2002
.
Gustav G. Siegel, III,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A13835
Agency No. 01-0017B
DECISION
Complainant filed a timely appeal with the Commission regarding the
agency's alleged non-compliance with the terms of a June 11, 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 settlement agreement provided that the agency would:
Determine what details are available at the GS-13 and GS-14 level, in
and out of the Examination Division, in the Delaware-Maryland District
and Headquarters Office that [complainant] is qualified for and can be
assigned to, as soon as possible within the next six months; and
Assign [complainant] to acting managerial details, as soon as possible
within the next six months, that will allow him to demonstrate his
managerial skills and readiness for certification for Ad Hoc Managerial
announcements, then based on his certification, be given priority
consideration for his application.
By letter to the agency dated March 3, 2001, complainant alleged that the
agency breached the settlement agreement, and requested that the agency
implement its terms. Specifically, complainant alleged that on February
7, 2001, an employee in the agency's personnel office was unable to locate
complainant's name on a list of employees entitled to receive priority
consideration. In addition, complainant alleges that his first acting
managerial assignment occurred within eight months of the signing of the
agreement which complainant contends obligated the agency to assign him
to an acting position "as soon as possible within the next six months."
In a letter dated May 23, 2001, the agency acknowledged its receipt of
complainant's breach allegation. However, the record indicates that the
agency failed to respond to complainant's concerns. On appeal, the agency
does not submit any response to complainant's allegations 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 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).
Complainant alleges that the agency breached the June 11, 1999 settlement
when he learned on February 7, 2001, that his name did not appear on a
list of employees entitled to priority consideration. Complainant also
alleges that the agency failed to assign him an acting managerial position
within six months of the agreement, but instead placed him in an acting
capacity on February 27, 2000; within eight months of the settlement.
The Commission finds that the agency has substantially complied with
its obligations under the agreement with respect to provision (A).
Although the agency provided complainant with an acting managerial
assignment beyond six months of the date of the agreement, we note
that the Commission has held that failure to satisfy a time frame in a
settlement agreement does not prevent a finding of substantial compliance,
especially when all required actions were subsequently completed.
See Miles v. Department of the Army, EEOC Appeal No. 01A10991 (March 9,
2001); Lazarte v. Department of the Interior, EEOC Appeal No. 01954274
(April 25, 1996).
Provision (B) of the settlement entitles the complainant to priority
consideration only if he demonstrated "management skills and readiness
for certification for Ad Hoc Managerial announcements. . . ."
The agreement only obligates the agency to give complainant's
application priority consideration for managerial positions "based on
his certification."
The agency failed to respond to complainant's allegations of breach
and did not submit any statement or evidence on appeal. Given the
lack of evidence regarding whether or not complainant demonstrated
managerial skills and readiness for certification for Ad Hoc Managerial
Assignments thus meriting priority consideration, the Commission is
unable to make an independent determination regarding the agency's
alleged non-compliance with provision (B). Therefore, we must remand
the matter to the agency for supplementation of the record. The agency
shall conduct an investigation to determine if it complied with provision
(B) of the June 11, 1999 settlement agreement. Accordingly, the instant
matter is REMANDED to the agency for further processing in accordance
with this decision and the Order below.
ORDER
The agency is ORDERED to take the following action:
The agency shall supplement the record with evidence addressing
complainant's entitlement to priority consideration based upon a
demonstration of managerial skills and readiness for certification for
Ad Hoc Managerial announcements, pursuant to provision (B). Thereafter,
the agency shall, within thirty (30) calendar days of the date that this
decision becomes final, issue a final decision addressing complainant's
settlement breach claim.
A copy of the final agency decision must be submitted 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
June 27, 2002
__________________
Date