0120131970
08-16-2013
Jack V. Russo, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Jack V. Russo,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120131970
Agency No. 12-00681-01325
DECISION
Complainant filed a timely appeal with this Commission from a final decision by the Agency dated March 13, 2013, finding that it was in compliance with the terms of a December 17, 2012 settlement agreement. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
BACKGROUND
On December 17, 2012, Complainant and the Agency entered into a settlement agreement to resolve a matter that was pursued in the EEO complaint process. The settlement agreement provided, in pertinent part, that the Agency would take the following action:
A. Pay to the Complainant, without tax withholding, the lump sum of One Hundred dollars ($100.00) for expenses incurred as a result of or associated with Complainant's processing of this complaint. In satisfaction of this commitment, the Agency will, no later than fifteen (15) days after the effective date of this agreement, via commercial courier (FedEx), deliver a check for $100.00 made payable to Complainant at his mailing address of record: [Complainant's mailing address].
B. The Agency agrees to forward Complainant's resume/application and accord Complainant one (1) "priority consideration" for the next vacancy and recruitment action that occurs after the effective date of this agreement within Security and Emergency Services Battalion, Marine Corps Base Camp Pendleton, California for a "Firefighter Basic Life Support GS-0081-07" position for which Complainant is qualified.
a. For this agreement only, "priority consideration" means that that Complainant will be given bona fide consideration on his own merit without competing against other potential candidates in the next formal recruitment action for the aforementioned vacancy following the effective date of this agreement.
b. This "priority consideration" will be available only for the next recruitment action taken to fill a vacancy for a Firefighter Basic Life Support GS-0081-07 position regardless of whether Complainant is selected for that vacancy.
c. The parties understand and agree that such "priority consideration" shall be provided in accordance with applicable Agency and Federal procedures, regulations, and laws governing such personnel actions, and shall not be applied in contravention of any individual's rights under any statute of regulations.
d. "Priority consideration" does not guarantee that Complainant will be selected to the position for which the priority consideration is accorded.
By fax transmission to the Agency dated February 20, 2013, Complainant alleged breach.1 Specifically, Complainant alleged that the Agency failed to give him "priority consideration" for the Firefighter Basic Life Support position. Complainant stated that the first vacancy for the subject position after the signing of the instant settlement agreement was announced on January 23, 2012. Complainant applied for the position, expecting to be given priority consideration. However, on February 12, 2013, Complainant received notice that the vacancy announcement had been cancelled, but that the subject position would be re-advertised. Complainant stated that he then reapplied for the subject position but he was later notified by Human Resources that he would not be given priority consideration as provided in the instant agreement.
The record also reflects that Complainant alleged that he did not receive a lump sum of $100.00 for expenses.
In its March 13, 2013 final decision, the Agency found no breach. Specifically, the Agency stated that the record reflects that the Agency electronically transferred $100 to Complainant's checking account. The Agency also found that according to the selecting official, Complainant was given priority consideration for the subject position, but did not select Complainant based on references he received from Complainant's present and former employers. Furthermore, the Agency determined that although the subject vacancy announcement was canceled due to "an error in assessment," Complainant was given priority consideration.
Complainant, on appeal, argued that because the Agency did not provide him "priority consideration" for the Firefighter Basic Life Support position in accordance with the settlement agreement, he requested that his complaint be reinstated from the point in which processing ceased.
The record contains a copy of a document titled "SF1034 - EDP Public Vouchers for Purchases and Services Other than Personal" prepared by an authorized Certifying Officer of the Agency's Entitled Office in Kansas City, Kansas. The record further reflects that on March 1, 2013, the Certifying Officer prepared a voucher for Complainant in the amount of $100.00. However, the record contains no evidence that the requisite payment was actually made to Complainant.
The instant appeal followed.
ANALYSIS AND FINDINGS
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. Dep't of Def., 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. Dep't 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. U.S. Postal Serv., 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, the record in this case contains insufficient evidence for us to determine whether a breach of the instant settlement agreement has occurred. We note, for example, that the Agency's letter of determination finding no breach is predicated upon statements from the selecting official. However, the record contains no affidavit from the selecting official indicating that he purportedly fulfilled the obligations under provision b of the settlement agreement.
The record also contains no affidavit from any responsible management official indicating that he or she purportedly fulfilled the obligations under provision a of the settlement agreement concerning paying Complainant a lump sum of $100.00 for expenses. Given this lack of evidence, we are unable to ascertain whether the Agency complied with the settlement agreement. Accordingly, the Agency's finding of no breach of the December 17, 2012 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 take the following action:
The Agency shall supplement the record with evidence clearly showing that it has complied with December 17, 2012 settlement agreement. The supplementation of the record shall include any documentation, such as affidavits from the selecting official and other responsible management officials indicating whether Complainant paid a lump sum of $100.00 for expenses and was given priority consideration for the next vacancy following the execution of the settlement agreement. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall issue a new decision concerning whether it breached the February 28, 2011 settlement agreement.
A copy of the Agency's new decision must be sent to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
August 16, 2013
__________________
Date
1 The record does not contain a copy of Complainant's February 20, 2013 letter alleging breach. Given other documentation in the record, including appellate arguments by Complainant, we can discern the nature of the breach claim even in the absence of this letter.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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