0120072138
09-05-2007
Louis S. Welker, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Louis S. Welker,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120072138
Agency No. 990607
DECISION
JURISDICTION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated February 16, 2007, finding that it was
in compliance with the terms of the July 6, 2001 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.
The settlement agreement (Agreement) provided, in pertinent part, that
the agency would:
(1) Guarantee the Complainant's current 801 Series GS-15
classification based upon his current qualifications, to the extent
allowed under existing Agency power and authority.
By letter to the agency dated April 16, 2005, complainant alleged that
the agency was in breach of the Agreement, and requested that the agency
specifically implement its terms. Specifically, complainant alleged
that the agency violated the terms of the Agreement by conducting a
phased reorganization in the facilities division. Complainant contends
that this reorganization "will reduce my GS-15 management status and
span of control by pushing my Branch reporting downward into a second
level tier under the control of a GS-14, Facilities Division, Deputy
Director Position who will assume responsibility for the Engineering and
Contracting functions." Complainant further maintains that the purpose
of the above clause in the Agreement "was to specifically protect me
from future Agency reorganizations, reassignments and the loss of staff
. . . , status, and management span of control."
In its February 16, 2007 FAD, the agency concluded that it had not
breached the Agreement. Specifically, the agency found that the language
of the Agreement merely stipulated that the agency would "guarantee
the Complainant's current 801 Series GS-15 classification based upon
his current qualifications" and that the record showed that complainant
was currently in the 801 series at the GS-15 level. The agency further
noted that the Agreement made no guarantee that complainant's series
and grade would remain unchanged forever.
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, we find that the agency properly determined that
there was no breach of the Agreement. We note initially that it is
unclear from the record whether the reorganization has actually taken
place or whether complainant is alleging that a future reorganization
would result in a breach of the Agreement. In any event we note that that
the Agreement merely promises to keep complainant in the 801 series at the
GS-15 level, and complainant makes no allegation that this was not done.
The Agreement, however, makes no mention of preserving complainant's
"GS-15 management status and span of control" or of protecting complainant
"from future Agency reorganizations, reassignments and the loss of staff
. . . , status, and management span of control."
Furthermore, as noted in the FAD, the Agreement does not specify that
the job classification described therein was to be permanent, or was to
last for any specific length of time. Here, complainant performed under
the Agreement's job classification for almost four years, and perhaps
longer1. The Commission has held that where an individual bargains for
a position or classification without any specific terms as to the length
of service, it would be improper to interpret the reasonable intentions
of the parties to include that the exact position or classification
would remain unchanged ad infinitum. See Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Papac
v. Department of Veterans Affairs, EEOC Request No. 05910808 (December
12, 1991). More specifically, in Hamilton V. U.S. Postal Service, EEOC
Appeal No. 01A2268 (July 5, 2002), the Commission found that the agency
did not breach a settlement agreement promising a Tour II schedule when
after five months, operational needs necessitated that complainant be
reassigned to Tour III. Therefore, based on the foregoing, we find that
it was not unreasonable for the agency to plan or conduct the phased
reorganization, and that the reorganization does not constitute a breach
of the Agreement.
Complainant also raised the issue of denial of career enhancing
opportunities. The Agreement is silent on such matters and hence such
denials do not constitute a breach. If complainant wishes to file a
new complaint alleging denial of career enhancing opportunities, as
well as other discriminatory acts since the signing of the Agreement,
complainant should contact an EEO Counselor.
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
September 5, 2007
__________________
Date
1 There is nothing in the record to suggest that complainant is not
still under the same classification.
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0120072138
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072138