01982544_r
04-28-1999
James R. Starnater, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
James R. Starnater, )
Appellant, )
)
v. ) Appeal No. 01982544
) Agency No. 950501
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant timely appealed the agency's final decision not to reinstate
his complaint of unlawful employment discrimination that the parties
had settled. See 29 C.F.R. ��1614.504, .402(a); EEOC Order No. 960,
as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency breached a settlement agreement.
BACKGROUND
The record indicates that appellant filed an informal complaint on
November 22, 1993, with regard to receiving negative comments from reviews
of his assigned plant. Thereafter, on January 27, 1994, the parties
settled the informal complaint. The settlement agreement provided,
in pertinent part, that:
The agency would document all plant visits to Establishment 7209 on the
same day of visit if possible, including both negative and positive plant
review findings; appellant would be given the opportunity to disagree
with plant review findings; every efforts would be made to conduct these
plant visits and reviews in a professional way; and appellant would be
given the opportunity to respond to plant review findings on the same
day that the plant was reviewed if possible.
By letter dated April 25, 1995, appellant alleged that the agency breached
the settlement agreement. Specifically, appellant indicated that on
February 9, 1995, he was not selected for the position of Veterinary
Medical Officer, GS-12, because his first level supervisor discussed his
work habits and supervisory potential with the selecting official without
giving him a prior written evaluation. Appellant asserted that his
supervisor told the selecting official about an incident when he was late
for work, which resulted in him being charged with absent without leave.
On January 5, 1998, the agency issued a final decision finding no
breach. The agency stated that the settlement agreement pertained
to the conditions found in appellant's plant during plant reviews.
The agency indicated that the settlement agreement did not provide that
appellant's supervisor could not be approached by selecting officials
concerning his evaluation of appellant's ability to work at a higher
grade position. Finally, the agency noted that the comments allegedly
made by the supervisor had nothing to do with the daily reviews he made
on appellant's plant.<1>
On appeal, appellant contends that a discussion of his evaluation is
the same as a review of his plant which is covered under the settlement
agreement.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.504 provides that if the complainant
believes that the agency failed to comply with the terms of a settlement
agreement, the complainant should notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of when the complainant knew or should
have known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point processing ceased.
The agency shall resolve the matter and respond to the complainant,
in writing. If the agency has not responded to the complainant, in
writing, or if the complainant is not satisfied with the agency's attempt
to resolve the matter, the complainant may appeal to the Commission for
a determination as to whether the agency has complied with the terms of
the settlement agreement or final decision.
The Commission has held that settlement agreements are contracts between
the appellant and the agency and it is the intent of the parties as
expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule
when interpreting settlement agreements. The Commission's policy in
this regard is based on the premise that the face of the agreement best
reflects the understanding of the parties.
In the settlement agreement, the agency agreed to document visits to
appellant's assigned plant, including plant review findings, and to
give appellant the opportunity to disagree. Appellant alleged that
the agency breached the settlement agreement when he was not selected
for the position of Veterinary Medical Officer because his first level
supervisor discussed his work habits and supervisory potential with the
selecting official without giving him a written evaluation prior thereto.
The agency, in its final decision, stated that the settlement agreement
did not provide that appellant's supervisor could not be approached by
selecting officials concerning his evaluation of appellant's ability to
work at a higher grade position. We agree. Upon review, we find that
the settlement agreement did not provide for a discussion of appellant's
evaluation with regard to his promotion, rather it addressed the manner in
which reviews of appellant's plant were conducted. Thus, we find that the
alleged incidents are not within the scope of the settlement agreement.
CONCLUSION
Accordingly, the agency's decision finding no breach of the settlement
agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
April 28, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations1The
agency also notes that appellant filed
a separate EEO complaint concerning
his nonselection.