01A30304_r
03-27-2003
Arthur M. Spanier, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Arthur M. Spanier v. Department of Agriculture
01A30304
March 27, 2003
.
Arthur M. Spanier,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A30304
DECISION
Complainant filed an appeal with this Commission alleging that the agency
breached the terms of the June 28, 2002 settlement agreement into which
the parties entered.
The settlement agreement provided, in pertinent part, that:
The Agency agrees:
(2) To allow Complainant to establish, and notify his official timekeeper
of, a tour of duty under the Agency's flexitour policy, currently 6:00
AM to 6:00 PM, Monday through Friday.
To allow Complainant to work at home on Agency projects until all
physical reasonable accommodations are installed or made accessible
to Complainant. Complainant shall work 80 hours per pay period,
as established in No.2 above, from home and apply for any leave in
accordance with Agency procedure.
By letter to the agency dated September 12, 2002, complainant alleged
that the agency was in breach of the settlement agreement. Specifically,
complainant alleged that the agency failed to afford him a flexible work
schedule, including the opportunity to work more than eight hour days,
the option of working on weekends or at home, and the opportunity to earn
credit hours or compensatory time. When the agency did not respond to
his allegation of noncompliance, complainant filed the present appeal.
In response to complainant's appeal, the agency argues that it has not
breached the terms of the June 28, 2002 settlement agreement. The agency
states that complainant agreed to establish a schedule within the agency's
flexitour policy, currently 6:00 AM to 6:00 PM, Monday through Friday.
The agency states that the flexitour policy consists of a schedule
of 8 hours a day, 40 hours per week, and 80 hours a biweekly period.
The agency notes that under the flexitour policy, an employee may
select their arrival and departure time subject to agency approval.
The agency states that, therefore, under the terms of the settlement
agreement complainant may request to work his 8 hour day between 6:00
AM and 6:00 PM, Monday through Friday. The agency argues that it did
not agree to permit complainant to work at home, on weekends, or more or
less than 8 hours per day. The agency notes that complainant mistakenly
cites the agency's maxiflex policy in support of his breach claim;
however, it states that the agreement provided only that complainant
be permitted to work under the flexitour policy. Finally, the agency
notes that although the document entitled �Flexible Work Schedules�
under the agency's Policies and Procedures does not specifically apply
to Agricultural Research Center [ARS], where complainant works, he
essentially agreed to the same arrangement under the settlement agreement.
The record contains a copy of the agency's policies and procedures
for �Flexible Work Schedules� originating from the agency's Human
Resources Division. This document establishes the work schedules for the
traditional schedule, the flexitour schedule, and the maxiflex schedule.
The document states that the flexitour schedule �consists of 8 hours
a day, 40 hours per week, and 80 hours a biweekly pay period.� The
document also states that under the flexitour schedule �[e]mployees
select the arrival and departure times subject to agency approval.�
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 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 present case, we find that complainant has not shown that the
agency breached the terms of the June 28, 2002 agreement. Provision (2)
of the agreement provided that complainant would be allowed to establish
a tour of duty under the Agency's flexitour policy, currently 6:00 AM to
6:00 PM, Monday through Friday. With regard to complainant's claim that
the agreement provided that he be afforded the opportunity to work on
weekends, we find that the agreement did not afford him this opportunity.
Rather, the agreement specifies that complainant's work days would
be scheduled between Monday and Friday. With regard to complainant's
claim concerning compensatory time and credit hours, we find that these
claims go beyond the scope of the agreement.
With regard to complainant's claim that he be allowed to work more
than 8 hours per day, we find that the agreement did not provide that
complainant would be afforded the opportunity to work more or less than
8 hours per day. As noted in the agency's policies and practices on
�Flexible Work Schedules� a flexitour schedule �consists of 8 hours a day,
40 hours per week, and 80 hours a biweekly pay period.� Although the
agreement provided that complainant, an ARS employee, would be allowed
to work the flexitour schedule, it did not specify that he be allowed
to work more or less than 8 hours per day.
With regard to complainant's claim that the agency refused to allow
him to work from home, we find that complainant has not shown agency
noncompliance with this term of the agreement. We note that under
provision (3), the agency agreed to allow complainant to work at home
until all physical reasonable accommodations are installed or made
accessible to him. We note that complainant does not allege that he was
denied the opportunity to work from home while reasonable accommodations
were being installed.
Accordingly, the agency's decision that it did not breach the settlement
agreement is AFFIRMED.
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
March 27, 2003
__________________
Date