0120100388
04-23-2010
James F. Outlaw, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
James F. Outlaw,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120100388
Agency Nos. ARYUMA05MAR07130 & ARYUMA05JUN08906
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated November 20, 2009, finding that it was
in compliance with the terms of the April 5, 2007 settlement agreement
into which the parties entered. See 29 C.F.R. �� 1614.402; 1614.405 &
1614.504(b).
The settlement agreement provided, in pertinent part, that:
4. The Agency agrees to the following terms and conditions.
(a) Lump Sum Payment: Within forty five (45) calendar days of
the effective date of this Settlement Agreement, the Agency will
provide to the servicing Defense Finance and Accounting Service
(DFAS) Office information necessary to process a lump sum payment
to the Complainant in the amount of Fifty Thousand ($50,0000.00).
. . .
(d) Reassignment to GS-14 Liaison Officer Position: The
Agency agrees to reassign the Complainant in accordance with the
provisions of this paragraph, to the position of Liaison Officer,
GS-0301-14, effective April 15, 2007. This reassignment will
constitute a permanent change of station (PCS) move for the
Complainant, who will continue to work for U.S. Army Yuma
Proving Ground, in the Directorate of Plans and Operations,
although he will be physically located to perform his duties at
Schofield Barracks, Hawaii. . . . The Agency agrees to pay the
Complainant's PCS relocation allowances for travel, transportation
and subsistence associated with the Complainant's PCS move to
Schofield Barracks, Hawaii . . . No later than one hundred and
eight (180) days following the effective date of this Settlement
Agreement, the Complainant will report for duty at his new duty
location at Schofield Barracks, Hawaii . . . If the Complainant
does not successfully perform the duties of said Liaison
Officer position, management reserves the right to cancel the
reassignment, and Complainant agrees that a cancellation of the
reassignment for this reason will not constitute non-compliance
by the Agency with this Settlement Agreement.
By letter to the agency, complainant alleged that the agency would be in
breach of the settlement agreement and requested that the agency continue
specific implementation of its terms. Specifically, complainant alleged
that, in a letter dated October 1, 2009, the agency directed him to report
for duty as a Liaison Officer (for the same base pay and pay band) at Yuma
Proving Ground, Arizona effective January 3, 2010. Complainant stated
that revocation of his assignment to Hawaii would constitute a breach.
In its November 20, 2009 final decision, the agency concluded that it
is in substantial compliance with the April 5 agreement and, hence,
did not breach it. Specifically, the agency stated, "The [agreement]
does not specify a period of time that [complainant] must remain in his
position at Schofield Barracks." The agency stated that complainant
reported to Hawaii in December 2007 and was scheduled to move to Arizona
in January 2010, which would have allowed him two years in his Hawaii
assignment and said assignment was not indefinite. The agency noted
that it reorganized and reassigned all four Liaison Officers to Yuma
Proving Ground, Arizona to substantially reduce costs to the agency.
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).
In the instant case, in April 2007, the agency agreed to reassign
complainant to a GS-14 Liaison Officer position effective April 15, 2007.
Further, the agency agreed that the "reassignment will constitute a
permanent change of station (PCS) move for the Complainant, who will
continue to work for U.S. Army Yuma Proving Ground . . . although he
will be physically located to perform his duties at Schofield Barracks,
Hawaii." Two years later, the agency informed complainant that he had
to return to physically working in Yuma, Arizona in the same position
or risk removal from Federal employment. Here, we are persuaded that
the agency breached the April 5 agreement by directing complainant's
reassignment to Arizona although the agreement stated that the station
change to Hawaii was "permanent." For the reasons stated above, we find
that the agency breached the agreement as complainant alleged.
To remedy a finding of breach, the Commission may order reinstatement
of the underlying complaint, or enforcement of the specific terms of
the agreement. See 29 C.F.R. � 1614.504(c). In this case, complainant
requested the latter. However, the agency stated that it reorganized
and returned all four Liaison Officers to Arizona, and so it appears that
assignment to Hawaii is not possible. Accordingly, the other option is
to remand complainant's claim for further processing. In so doing, we note
that complainant received some of the benefits promised in the Agreement,
benefits which must be returned if he wishes to reinstate his complaint
for further processing. We therefore give complainant the option,
in accordance with the Order below, of either returning the benefits
conferred pursuant to the agreement and reinstating the complaint, or
keeping the benefits and allowing the April 5, 2007 agreement to stand.
ORDER
The agency is ordered to notify complainant of his option to either return
to the status quo prior to the signing of the settlement agreement or
to accept the partial compliance with the April 5, 2007 agreement. The
agency shall so notify complainant within thirty (30) calendar days
of the date this decision becomes final. The agency shall also notify
complainant that he has fifteen (15) calendar days from the date of his
receipt of the agency's notice within which to notify the agency of his
election. Complainant shall be notified that in order to return to the
status quo ante, he must return any benefits received pursuant to the
agreement. The agency shall determine any payment due complainant, or
return of consideration or benefits due from complainant, within thirty
(30) calendar days of the date this decision becomes final, and shall
include such information in the notice to complainant.
If complainant elects to return to the status quo ante and he returns any
monies or benefits owing to the agency, as specified above, the agency
shall resume processing complainant's complaint from the point processing
ceased pursuant to 29 C.F.R. � 1614.108 et seq. If complainant elects not
to return to the status quo ante, i.e., not to return any consideration
owing the agency, the agency shall notify complainant that the terms of
the settlement agreement shall stand.
A copy of the agency's notice to complainant regarding his options,
including the determination of consideration due or owing, as well
as a copy of either the correspondence reinstating the complaint for
processing or the correspondence notifying complainant that the terms
of the agreement will stand, must be sent to the Compliance Officer,
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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 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 (R0408)
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 (Z1008)
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
April 23, 2010
__________________
Date
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0120100388
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100388