0120091992
09-11-2009
Christal Pagan-Pumphrey, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Christal Pagan-Pumphrey,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120091992
Agency No. 9X1M08049
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated March 12, 2009, finding that it was
in compliance with the terms of the August 6, 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:
Based upon complainant's job qualifications, the agency will, acting
in good faith, for a period of six months from the date of the last
signature on this agreement, actively conduct a search for a vacant
position within the Aeronautical Systems Center (ASC). From amongst the
vacant positions found within ASC that the complainant is qualified for
(if any), the agency may reassign complainant to one of those vacant
positions of its choice by a management-directed reassignment.
By letter to the agency dated February 9, 2009, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Notably, when complainant
first filed her allegation of breach of the settlement agreement with
the agency, she indicated that the agreement was breached because the
agency promised to reassign her within six months, and to date, she had
not been reassigned. However, when complainant filed the instant appeal,
she alleges the breach is the fact that she understood a "vacancy" to
be any position on the Unit Manning Document and/or any position that
generates a certificate, and because the agency only searched active
positions that were currently being advertised, this is a breach of the
settlement agreement.
In its March 12, 2009 FAD and subsequent appeal response, the agency
concluded that complainant was not guaranteed a management reassignment
within the six-month period. Even if qualified for a particular vacancy,
the provision stated "the agency may reassign complainant to one of those
vacant positions of its choice...." (emphasis added). The agency was
in no way compelled to management reassign complainant if it was not in
the best interest of the agency under the circumstances.
Concerning whether the agency was required to search all vacant positions
contained on the Unit Manning Document of ASC for which complainant was
qualified, the agency explains that it is a known fact that organizations
routinely have many vacant positions on their respective Unit Manning
Documents which are never filled or identified for fill because the
positions are not needed at the time (i.e., the mission is sufficiently
being supported with the manpower they currently have). To fill such a
position merely for the sake of it would not make sense or be fiscally
responsible. As such, the only reasonable interpretation of the word,
vacancy, as used in the settlement agreement is vacancies that were
actively being identified for fill. Additionally, because vacancies
on a Unit Manning Document can be there for any number of reasons, the
agency typically searches for vacancies that are actively being filled
or are being identified for fill. The agency maintains that it is in
compliance with and has not breached the settlement agreement as alleged.
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).
As an initial matter, we find that the plain meaning rule cannot be
applied to this agreement as the clause concerning the agency's "good
faith" obligation to conduct a search for a "vacant position" to which
complainant "may" be placed by "management-directed reassignment," is
filled with such nebulous and vague language that it prevents a reasoned
determination as to whether it was complied with by the agency. See
Bruns v. United States Postal Service, EEOC Appeal No. 01965395 (June
24, 1997). For example, the parties are now engaged in significant
dispute over what constituted a "vacant position" - any position on
the Unit Manning Document as argued by complainant, or only those
being currently advertised as argued by the agency. The parties also
dispute the meaning and significance of the term "management-directed
reassignment," with complainant arguing that the term implies that
she is not limited to positions where she was required to compete with
other applicants. The vagueness of the relevant terms of the agreement
render it impossible for the Commission to determine compliance.
Moreover, when a party incurs no legal detriment, the settlement
agreement lacks consideration, and is void. See Terracina v. Department
of Health and Human Services, EEOC Request No. 05910888 (Mar. 11, 1992).
To incur a legal detriment, the parties must commit themselves to do
something they were not already obligated to do. See Morita v. Department
of the Air Force, EEOC Request No. 05960450 (December 12, 1997). In the
instant matter, the agency merely searched vacancy announcements that
were otherwise available to the public. Thus, complainant was already
privy to whatever vacancies the agency had generated in its search.
Significantly, the agency has taken the position that it never promised
to do anything with the results of the search, even if complainant was
found to be fully qualified for a position. Under the facts of this
case, we find the obligation undertaken by the agency, in exchange for
complainant's withdrawal of her EEO complaint, to be so de minimis as
to constitute lack of consideration.
Under these circumstances, the Commission finds that the agreement is void
and, pursuant to 29 C.F.R. � 1614.504, orders the agency to reinstate
complainant's complaint of July 2008 from the point that processing
ceased.
ORDER
The agency is ordered to process the remanded July 2008 complaint in
accordance with 29 C.F.R. Part 1614 from the point at which processing
ceased pursuant to the August 6, 2008 settlement agreement. The agency
shall acknowledge to the complainant that it has received the remanded
claims within thirty (30) calendar days of the date this decision
becomes final. The agency shall issue to complainant a copy of the
investigative file and also shall notify complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this
decision becomes final, unless the matter is otherwise resolved prior
to that time. If the complainant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 (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 (R0408)
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 (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
September 11, 2009
__________________
Date
2
0120091992
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091992