0120123433
02-07-2013
Keith W. Gauff, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Keith W. Gauff,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120123433
Agency No. ARDRUM10JUL02590
DECISION
Complainant filed a timely appeal with this Commission from a final decision (FAD) by the Agency dated July 16, 2012, finding that it was in compliance with the terms of the 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an IT Specialist at the Agency's IT Systems Support Division facility in Fort Drum, New York.
Believing that the Agency subjected him to unlawful discrimination, Complainant contacted an Agency EEO Counselor to initiate the EEO complaint process. On July 19, 2010, Complainant and the Agency entered into a settlement agreement to resolve the matter. The settlement agreement provided, in pertinent part, that:
The Agency agrees to: Reemploy Complainant by reinstatement to a career-conditional appointment in the competitive service to the position of GS-2210-11, IT Specialist (SYSADMIN), Position Description BN295951. This appointment will be effective on or about 16 August 2010, and is subject to completion of a one year initial probationary period that begins the same day as the effective date of this appointment.
By letter to the Agency dated May 21, 2012, 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 settlement agreement when he was not given reinstatement rights to his IT Specialist position.
In its July 16, 2012 FAD, the Agency initially noted that Complainant's claim of breach was untimely raised. The Agency indicated that Complainant was reinstated in August 2010; therefore, his claim of breach in May 2012 was well beyond 30 days of when he should have been aware of a breach. Further, the Agency concluded that it complied with the settlement agreement.
The Agency noted that it reinstated Complainant into the IT Specialist position effective August 16, 2010. However, subsequently, in April 2011, Complainant applied for and was accepted for a reassignment to an overseas position. Complainant had to sign a form regarding reassignment rights in February 2011, regarding his return from his overseas assignment. Subsequently, in March 2012, Complainant was informed by the Agency that he was not entitled to reinstatement because he was still in his probationary period prior to accepting his overseas assignment. The Agency found that it reinstated Complainant pursuant to the settlement agreement. Complainant changed the situation when he took the overseas reassignment. As such, the Agency concluded that it did not breach the settlement agreement.
This appeal followed.
ANALYSIS
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 Agency clearly complied with the settlement agreement and reinstated Complainant to the IT Specialist position effective August 16, 2010, for a probationary period of one year. As such, we find that the Agency complied with the settlement agreement. We note that Complainant's issue at hand involved his reinstatement rights following the reassignment to the overseas position which occurred after he was reinstated to his IT Specialist position as provided in the settlement agreement. This is a subsequent event which is not covered by the settlement agreement. Such allegation should have been raised as a new complaint rather than a breach of the agreement. See 29 C.F.R. � 1614.504(c).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's determination.
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 (S0610)
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 (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
February 7, 2013
__________________
Date
2
0120123433
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123433