01A45371
12-15-2005
Ira Wein, Complainant, v. Christopher Cox, Chairman, Securities and Exchange Commission, Agency.
Ira Wein,
Complainant,
v.
Christopher Cox,
Chairman,
Securities and Exchange Commission,
Agency.
Appeal No. 01A45371
Agency No. 040404
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) dated July 29, 2004, finding that it was in compliance
with the terms of the April 20, 2004 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:
1a The SEC agrees that complainant will receive full and fair
consideration for any SEC vacancy for which he applies, including
managerial positions in connection with the reorganization of the Office
of Economic Analysis (OEA).
1j The SEC agrees that office reassignments will be fair and
transparent, and will be based on the reorganization of the OEA [Office
of Economic Analysis]. Office reassignments will be made concurrent
with the selection of managerial economics.
By letter to the agency dated June 22, 2004, complainant alleged that
the agency was in breach of the settlement agreement. Specifically,
complainant alleged that his supervisor breached provision 1j by
"tampering with the process used for the distribution of offices."
Complainant alleged that his supervisor came to him and asked him if
he would switch to the office next to the one he had chosen to move
so that a co-worker could keep her office, although the co-worker was
ranked lower than complainant on an office assignment list. Complainant
further alleged that his supervisor pressured another employee to take
an office he did not want so that his friend could have the office
the co-worker wanted to occupy and attempted to influence the office
selection process so that another friend could keep his window office.
During the investigation of complainant's breach claim on July 6, 2004,
complainant further raised his concern that he had not been selected for
the position of Supervisory Financial Analyst. Complainant stated that
his supervisor informed him that he was certified for the position and
the vacancy had been cancelled. Complainant alleged that a friend of
his supervisor's has been pre-selected for the position, in violation
of provision 1a.
In its July 29, 2004 FAD, the agency concluded that it did not breach
the agreement. The FAD concluded that a certification was never given
for the Supervisory Financial Analyst position, and complainant was
given full and fair consideration for the position. The FAD further
concluded that while complainant's supervisor requested that he change
his office selection, he assigned complainant to his office choice
after complainant indicated he did not want to change his selection.
The FAD also concluded that complainant's co-worker was also given the
option to keep his original office space selection when the supervisor
discussed office assignments with him. The FAD found that the office
selection process was fair and transparent.
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).
Generally, the adequacy or fairness of the consideration in a settlement
agreement is not at issue, as long as some legal detriment is incurred
as part of the bargain. However, when one of the contracting parties
incurs no legal detriment, the settlement agreement will be set aside
for lack of consideration. See MacNair v. U.S. Postal Service, EEOC
Appeal No. 01964653 (July 1, 1997); Juhola v. Department of the Army,
EEOC Appeal No. 01934032 (June 30, 1994) (citing Terracina v. Department
of Health and Human Services, EEOC Request No. 05910888 (March 11, 1992).
In provision 1a, the agency agreed that complainant would receive full
and fair consideration for any SEC vacancy for which he applies. We find
that the term "fair" is too vague to be enforced. See Johnson v. United
States Postal Service, Appeal No. 01A21576 (June 17, 2003)(ethereal
provisions regarding fair treatment of employees are too vague to allow
a determination as to whether the agency has complied with such an
agreement). We also find that by agreeing to give complainant full and
fair consideration for a job vacancy, the agency was merely agreeing to
provide complainant nothing more than that which he was already entitled
to receive as an employee. We note that this provision is not the same
as a provision that promises complainant a particular position or even
priority consideration, which would contain sufficient consideration
to bind the agency to a particular course of action that it would not
otherwise be obligated to undertake. Similarly, in provision 1j, the
agency promised that office assignments would be fair and transparent and
based on the reorganization of the OEA. Again, the term "fair" is too
vague to enforce, as is the term "transparent" which is not defined by the
agreement's terms. Moreover, there is no indication in the record that
basing official assignments on the reorganization of the OEA obligated
the agency to do something that it was not already obligated to do apart
from the settlement agreement. Accordingly, we find that provisions 1a
and 1j are void and unenforceable. Because portions of the remainder of
the settlement agreement contain adequate consideration,1 we find that the
settlement agreement is hereby reformed without provisions 1a and 1j.
We further note that matters contained in complainant's breach
claim arguably also allege that he was subjected to further acts
of discrimination. EEO Regulations provide that allegations that
subsequent acts of discrimination violate a settlement agreement shall
be processed as separate complaints, not as breach claims. 29 C.F.R. �
1614.504(c). Therefore, we find that if complainant has not already done
so, he should contact an EEO counselor to pursue these matters within
45 days after the date this decision becomes final.
CONCLUSION
Accordingly, the Commission AFFIRMS the agency's final decision for the
reasons set forth in this decision.
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
_December 15, 2005_____________
Date
1 We note that the agency agreed to pay complainant a lump sum
of $10,000.00 in provision 1h and $3,600.00 in attorney's fees in
provision 1i. However, provision 1d's guarantee that complainant will
not be subjected to retaliation only obligated the agency to do what
it is already obligated to do by law, and therefore does not contain
adequate consideration.
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01A45371
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 0036
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01A45371