James R. Starnater, Appellant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionApr 28, 1999
01982544_r (E.E.O.C. Apr. 28, 1999)

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.