01A41714_r
06-16-2004
Rayford L. Johnson, Complainant, v. Alphonso Jackson, Acting Secretary, Department of Housing and Urban Development, Agency.
Rayford L. Johnson v. Department of Housing and Urban Development
01A41714
June 16, 2004
.
Rayford L. Johnson,
Complainant,
v.
Alphonso Jackson,
Acting Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01A41714
Hearing No. 310-A1-5530
DECISION
Complainant appeals to the Commission pursuant to 29 C.F.R. � 1614.504(b),
for a determination as to whether the agency is in breach of a settlement
agreement. On March 26, 2003, the parties resolved complainant's
complaints by entering into a settlement agreement which provided,
in pertinent part, that complainant would receive the following:
Management will give the Complainant:
Priority consideration for Equal Opportunity Specialist, GS-13 position
within the Department's Office of Fair Housing and Equal Opportunity
advertised under vacancy announcement number 06-MSR-2003-0003.
Priority consideration for one additional GS-13 vacancy within the
Department's Office of Fair Housing and Equal Opportunity for which
Complainant is qualified.
By letter dated November 19, 2003, complainant alleged that the agency
breached the settlement agreement. Specifically, complainant alleged that
the agency breached the settlement agreement when following an Office
of Special Counsel investigation, the agency reassigned complainant to
a different position.
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).
The record indicates that complainant was given priority consideration
and selected for the Equal Opportunity Specialist, GS-13 position
within the Department's Office of Fair Housing and Equal Opportunity
advertised under vacancy announcement number 06-MSR-2003-0003, which
he held for seven months. Following the selection, several employees
filed a complaint with the Office of Special Counsel challenging
complainant's priority consideration for the position. The employees
argued that the priority consideration was not authorized by law,
rule or regulations because complainant was only entitled to priority
consideration for a GS-13 position and not a GS-13 position with
promotion potential to a GS-14. The Office of Special Counsel found
that "both agency officials and [complainant] were mistaken during
settlement discussions about the promotion potential of the position for
which he was given priority consideration. . . Both were unaware that
the position had non-competitive promotion potential to GS-14." As a
result of the Office of Special Counsel's findings, the agency agreed
to "(1) reassign [complainant] to another GS-360-13 Supervisory Equal
Opportunity Specialist position and (2) allow all of the individuals who
applied under vacancy announcement no. 06-MSR-2003-00[0]3 and were rated
qualified, including [complainant] to compete again for the position."
Complainant argues that the agency's agreement with the Office of Special
Counsel breached his settlement agreement. The agency argues that it
can not legally keep complainant in the position. Further, the agency
argues that doing so would give complainant more than make whole relief,
i.e., GS-13 position with promotion potential to GS-14 instead of GS-13
without the same promotion potential.
The record shows that complainant was given priority consideration
for vacancy announcement number 06-MSR-2003-0003 and selected for the
position, which he held for seven months. A subsequent act, the Office
of Special Counsel's investigation, required the agency to reassign
complainant. The record indicates that complainant was reassigned to the
position he initially applied for and was not selected which resulted
in the underlying complaint. We find that unforseen circumstances,
i.e. the Office of Special Counsel's ruling, made it impossible for the
agency to perform under the settlement agreement, thus invalidating the
consideration provided by the agency. We note that provision (a) is a
material provision of the settlement agreement. Therefore, the agreement
is now void and we shall reinstate the underlying complaint for further
processing from the point processing ceased. See 29 C.F.R. � 1614.504(c).
The agency's decision finding no breach is REVERSED and the matter is
REMANDED to the agency for processing of the settled matter pursuant to
the Order herein.
ORDER
The agency shall resume the processing of the settled EEO claims from
the point processing ceased pursuant to 29 C.F.R. Part 1614. Within
30 calendar days of the date this decision become final, the agency
must notify complainant of reinstatement of the settled EEO claims.
The agency must provide the Compliance Officer, as referenced herein,
with a copy of this letter.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
June 16, 2004
__________________
Date