0120092161
09-17-2009
Craig J. Charest, Complainant, v. Gary Locke, Secretary, Department of Commerce, Agency.
Craig J. Charest,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120092161
Agency No. 096300081D
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated April 6, 2009, finding that it was in
compliance with the terms of the January 30, 2009 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 obligated the agency to:
(a) Reinstate the [complainant] as Crew Leader assigned to the
Gainesville Local Census Office #2928 with a not to exceed date of June
15, 2009;
(b) Provide [complainant] with work in and around Alachua County
beginning on or about February 2, 2009; [Complainant] is expected to
perform all duties of a Crew Leader, including traveling outside Alachua
County periodically to supervise enumerators;
(c) Provide [complainant] with one day of administrative training
for the purpose of in-processing. This training will be followed by four
hours of laptop self-study and 19 hours of self-study for the DAAL Address
Canvassing Operation. On February 16-18, 2009 or February 18-20, 2009,
[complainant] will attend two and a half days of classroom training in
Tallahassee, FL, address to be determined. Upon completion of training,
[complainant] will begin work as a Crew Leader.
The record reveals that on March 25, 2009, complainant filed a formal
complaint with the agency alleging that he had not been provided
"consistent work." The agency construed complainant's claim as a breach
allegation of the January 30, 2009 settlement agreement.
In its April 6, 2009 FAD, the agency concluded that it had not breached
the agreement as alleged. The agency states in its final decision
that on November 24, 2008, complainant was appointed to the position of
Recruiting Assistant in the Gainesville, Florida Local Census Office.
His appointment was a temporary excepted service appointment not to exceed
January 24, 2009. The record further reveals that effective January
8, 2009, complainant's appointment was extended not to exceed March 8,
2009, and he was converted from the position of Recruiting Assistant to
Crew Leader. His hourly wage, tenure group and work schedule remained
unchanged. The record further discloses that complainant received 55
hours of training between February 4, and February 20, 2009. In addition,
the agency indicates that between February 25, 2009 and March 10, 2009,
complainant worked 86.5 hours of regular time and 9.25 hours of overtime
as Crew Leader in Alachua County.
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).
In the instant case, we find that complainant has failed to establish that
the agency breached the January 30, 2009 agreement between the parties.
Complainant alleges that he has not been given "consistent work" in
violation of the agreement. However, the specific terms of the agreement
are silent regarding the number of hours or amount of work complainant's
position will allow. The agency has provided the Commission with a copy
of a Notification of Personnel Action which indicates that complainant's
position as Crew Leader is intermittent, with no regularly scheduled
tour of duty. In applying the plain language standard discussed herein,
the Commission finds that complainant has failed to demonstrate that the
agency has violated any specific provision of the agreement. We find
therefore, that the agency's determination of compliance with the January
30, 2009 settlement was proper.
Accordingly, the agency's decision is hereby affirmed for the reasons
set forth herein.
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
September 17, 2009
__________________
Date
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0120092161
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092161