Christal Pagan-Pumphrey, Complainant,v.Mike Donley, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionSep 11, 2009
0120091992 (E.E.O.C. Sep. 11, 2009)

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