01A05621_r
05-07-2001
Parthapratim Basu, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Parthapratim Basu v. Department of Agriculture
01A05621
May 7, 2001
Parthapratim Basu,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A05621
Agency No. 970882
DECISION
Complainant filed the instant appeal regarding an alleged breach of a
settlement agreement entered into by the parties on September 25, 1996.
The settlement agreement provided in pertinent part that the agency
would �reassign [complainant] to the position of Division Director of
Chemistry and Toxicology, Office of Public Health and Science (OPHS)
effective November 3, 1996.� The settlement agreement also provided that
the agency would not engage in any acts of retaliation, harassment or
reprisal due to the filing of EEO complaints, which included involuntary
transfer or change of duties. Complainant alleged that the agency breached
the agreement by reassigning him out of his position.
Following complainant's appeal to the Commission, the agency submitted
a statement dated October 24, 2000, indicating that complainant had
been assigned to the position of Director on September 25, 1996.
The agency found that complainant's reassignment from his position as
Director �was due to a reorganization of OPHS.� The agency found that
the OPHS reorganization was not foreseen at the time of the agreement,
was not initiated in retaliation for complainant's prior EEO activity,
and indeed occurred July 2000, over three years after the subject
agreement. The agency found that there had been no breach of the
settlement agreement.
On appeal, complainant argues that even if the reorganization was not
foreseen at the time the settlement agreement was entered and although
the agreement is now three years old, the agency should not be released
from its obligation to comply with the terms of the agreement.
EEOC Regulations 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 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).
The Commission has held that a settlement agreement that places a
complainant into a specific position, without defining the length
of service or other elements of the employment relationship, will
not be interpreted to require the agency to employ the complainant in
the identical job specified in perpetuity. See Parker v. Department of
Defense, EEOC Request No. 0510576 (August 29, 1991). In the instant case,
pursuant to the settlement agreement, complainant has not challenged the
agency's assertion that he was placed into the position of Director,
Division of Chemistry & Toxicology Division, (OPHS), on September 25,
1996. Complainant asserts that he was reassigned to a different position
effective July 7, 2000. There is no evidence that the agency either
knew at the time of the settlement that the agency would be reorganized,
or that it acted in bad faith in negotiating the settlement.
The Commission finds that because the agency kept complainant in the
agreed position for a period of almost four years and because the
agreement did not provide that complainant would remain in the agreed
upon position for a specified length of time, the agency has not breached
the settlement agreement.
For the reasons stated herein, the agency decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
May 7, 2001
__________________
Date