0120091443
08-06-2009
Rodger A. Brothers, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Rodger A. Brothers,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120091443
Agency No. ARANAD08FEB00335
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated February 10, 2009, finding that it
was in compliance with the terms of the December 11, 2008 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 provided, in pertinent part, that:
(1) Complainant will be reassigned from his 2nd shift position
as a WG-2604-08 Electronics Worker in cost center 52D70, Cable Repair
Branch, Armament System Division, Directorate of Production, AMAD, to
a 2nd shift position as a WG-2604-08 Electronics Worker in cost center
52DD0, Laser/Thermal Electronics Repair Branch, Armament System Division,
Directorate of Production. Management will initiate the required actions
to accomplish this reassignment within 30 calendar day of the execution
of this agreement.
(2) Complainant will receive assistance in updating and ensuring the
accuracy of his resume from Mr. D.W.... This assistance will be based
upon the materials provided voluntary attendees of a recently conducted
training session involving the Department of the Army's Resumix system.
Complainant acknowledges that he is responsible for his resume being up
to date and accurate.
(3) Complainant further understands and agrees that any other ANAD
employee who requests and receives assistance from Mr. [D.W.] on updating
and ensuring the accuracy of their resume will receive substantially
the same assistance as provided Complainant.
By letter to the agency dated January 8, 2009, complainant alleged
that the agency breached the settlement agreement. Specifically,
he alleged that his cost center had not been changed, and while he
received assistance with his resume, it was not in good faith as it
was only for 15 minutes, only minor changes were made, and others were
assisted multiple times for longer periods and some had their resumes
completely rewritten.
In its February 10, 2009 FAD, the agency concluded that it did not breach
the settlement agreement. The FAD found that the agency reassigned
complainant, as agreed, and assisted him with his resume, as agreed.
It also found that Mr. D.W. assisted complainant a second time with his
resume on January 17, 2009.
The record contains a notification of personnel action and computer
printout verifying that effective December 21, 2008, complainant was
reassigned from the position of Electronics Worker, WG-2604-08, in the
Directorate of Production, Armament Systems Division, Cable Repair Branch,
Cost Center 52D7, to the position of Electronics Worker, WG-2604-08, in
the Directorate of Production, Armament Systems Division, Lazer/Thermal
Electrical Branch, Cost Center 52DD.1
The record also contains an affidavit by Mr. D.W. that he assisted
complainant with his resume on December 11, 2008, reviewing it and
suggesting changes. He wrote that the time he spent assisting each
employee was based on each employee's circumstances, and he did not put
a time limit on complainant or any other employee. He explained that he
went over the same things with each employee, providing specificity as
to the things he reviewed. He indicated that he asked all the employees,
including complainant, if they had any military experience in a Military
Occupational Specialty (MOS) that included any of the position description
skills for which they expressed an interest in applying. If so,
they would get documentation about that MOS and ensure the employee's
resume reflected the pertinent skills. He wrote that some employees
did provide the above documentation, so he helped them more than once.
He wrote that complainant, with the same opportunity he gave others,
had no military MOS job skills experience and no documented civilian
job experience that included any of the position description skills for
which he expressed an interest in applying. Mr. D.W. affirmed that he did
not rewrite the resume for any employee, and if it was rewritten at all,
it would have been done by the individual employee. He indicated that
he reviewed complainant's resume with him again on January 17, 2009,
asked if there was anything else he could document in order to revise
his resume, and complainant said no.
On appeal, complainant resubmits his notice of breach of January 8, 2009.
He makes no argument. In opposition to complainant's appeal, the agency
argues that the FAD should be affirmed.
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).
Complainant has not established that the settlement agreement was
breached. The record shows he was reassigned, as agreed. The agency
initiated the action to reassign complainant within the agreed time,
and went further and completed the reassignment within this time.
Further, the agency assisted complainant with his resume, as agreed.
Complainant, in effect, argues that the agency engaged in bad faith by
not making a real effort to assist him. This is persuasively rebutted
by the affidavit of Mr. D.W.
The FAD is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
August 6, 2009
__________________
Date
1 Both the notification of personnel action and the computer printout
indicate complainant was reassigned from cost center 52D7 to 52DD.
The settlement agreement provided complainant would be reassigned from
cost center 52D70 to 52DD0. We find that these numbers refer to the
same cost centers.
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0120091443
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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