01A00855
08-30-2002
Jerry R. Ray, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Jerry R. Ray v. Department of the Treasury
01A00855
08-30-02
.
Jerry R. Ray,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A00855
Agency Nos. 96-1011R, 98-1123T, & 98-1355
Hearing Nos. 120-98-9694X, & 120-98-9762X
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated October 20, 1999, finding that it was
in compliance with the terms of the March 3, 1999 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.<1>
The settlement agreement provided, in pertinent part, that:
(1) The agency would grant complainant a high-quality step increase of one
step, from GS-14-09 to GS-14-10, effective retroactively to March 3, 1996.
(2) The complainant and the agency agree to reduce to writing, within
thirty days of the effective date of this settlement agreement , the
performance action items and expectations, the successful completion of
which would merit a distinguished rating, as well as those that would
merit a fully-successful rating.
By letters to the agency dated June 16th and July 2, 1999, complainant
alleged that the agency was in breach of the settlement agreement,
and requested that the agency specifically implement its terms.
Specifically, complainant alleged that the agency failed to comply with
the above-referenced provisions of the March 1999 agreement. In its
final decision dated October 20, 1999, the agency concluded that it did,
in fact, fully comply with the terms of the settlement agreement.
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 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).
A spreadsheet prepared by the agency indicates that in March 1996,
complainant was at Grade GS-14, step 8, not at step 9. In order to ensure
that complainant would receive a within-grade increase to step 10 as soon
as possible, complainant was given a promotion to step 9, retroactive to
March 1996, so that he would be eligble for a within-grade increase to
step 10 in September 1996, the earliest possible date. The paperwork
confirmed that complainant was retroactively given a step increase to
step 9 in March 1996 and again to step 10 in September 1998. He was
awarded back pay for the period between March 1996 and June 1999 in the
amount of $5,183.37. Consequently, we find that the agency complies with
this provision of the March 1999 settlement agreement.
As to the provision regarding the performance expectations memorandum,
a letter from the agency's assistant regional counsel to complainant's
attorney, dated April 7, 1999, indicates that the memorandum in
question had been completed and provided to complainant on March 31,
1999. Complainant alleged that, while this memorandum identified
the expectations for �distinguished� performance, it did not do so
for �fully successful� performance. However, the district director
indicated that, in order for complainant to be given a performance rating
of �fully successful,� he would have to accomplish all of the items in
his managerial performance plan and act upon the items contained in the
operational review of his group dated December 16, 1998. Complainant had
thus been informed of the expectations for his performance at the fully
successful and distinguished levels. We therefore find that the agency
complied with this provision of the settlement agreement.
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
____08-30-02______________
Date
1In his EEO complaints, complainant claimed that the agency had
discriminated against him on the bases of age (52) , gender, race
(unspecified), and reprisal by not selecting him for supervisory positions
in August 1995 and May 1998, and by lowering his performance appraisal
on an unspecified date.