01a45371r
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
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[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.