David W. Shedd, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionDec 21, 2000
01995189_r (E.E.O.C. Dec. 21, 2000)

01995189_r

12-21-2000

David W. Shedd, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


David W. Shedd v. Department of Agriculture

01995189

December 21, 2000

.

David W. Shedd,

Complainant,

v.

Daniel R. Glickman,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01995189

Agency Nos. 941020

950127

DECISION

Complainant filed an appeal with this Commission from a final decision

(FAD) by the agency dated June 11, 1998, finding that it was in compliance

with the terms of the November 28, 1994 settlement agreement into which

the parties entered.<1> See EEOC Regulation 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:

GIPSA (Grain Inspection, Packers, and Stockyards Administration)

agrees to:

(3) Request that an independent Agency (other than GIPSA) conduct

a Personnel Management Evaluation, including EEO, of the Beltsville

[Maryland] Commodity Testing Laboratory. This evaluation should be

completed during FY 95.

By letter to the agency dated June 28, 1996<2>, complainant alleged

that the agency breached the settlement agreement, and requested that

the agency reinstate his complaint. Specifically, complainant alleged

that the agency failed to conduct a Personnel Management Evaluation.

Complainant asserted that he had never been informed of the fulfillment

of the terms. Therefore, he believes the evaluation was never completed

during FY 95 as required.

Following the breach claim, complainant filed an appeal with the

Commission. The Commission determined that the agency had not issued a

decision regarding the alleged breach of provision 3. The agency was

ordered to supplement the record with evidence addressing whether it was

in compliance with provision 3 and to issue a decision concerning whether

the agency breached the provision. Shedd v. Department of Agriculture,

EEOC Appeal No. 01966781 (March 18, 1998).

On June 11, 1998, the agency issued a decision that is the subject of the

instant appeal. Therein, the agency determined that because of changed

circumstances, it could not comply with provision 3. Specifically, the

agency determined that immediately after the agreement was executed,

complainant left the agency to work for the U.S. Government Printing

Office. The agency concluded that complainant would not therefore be

affected by the results of the evaluation and lacked standing to request

that it be done. Further, the agency noted that the laboratory is no

longer located in Beltsville, Maryland due to agency reorganization;

and that the laboratory is in Kansas City, Kansas with a different staff.

According to the agency, provision 3 of the agreement is moot.

On appeal, complainant argues that provision 3 �could and should have

been accomplished....� In response to the agency's assertion that he

lacks standing, complainant argues that the language of the agreement does

not require him to be an employee of the agency and that at the time the

parties entered the agreement, he had in fact already left the agency.

Regarding the agency's contention that the lab has since moved to Kansas

City, complainant asserts that the move did not occur until March or

April 1996 and the agency could therefore have completed the evaluation

during FY 1995. Additionally, complainant provided a letter from his

attorney dated August 11, 1997, asserting that �[t]he independent

evaluation of the agency's personnel management was a crucial aspect of

the agreement...� and a transfer in laboratory location would not alter

the unfair practices complainant hoped the evaluation would reveal.

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).

The Commission determines that a reasonable construction of provision 3

placed an affirmative obligation upon the agency to complete a Personnel

Management Evaluation in FY 1995. The agency acknowledges that it did not

complete an evaluation and argues that because of changed circumstances,

it is unable to comply with provision 3. We are not persuaded, however,

by the agency's argument that complainant's departure from the agency

released it from its duty. According to complainant, he had already

left the agency at the time the agreement was entered. Although, as

noted above, provision 3 required the agency to complete the evaluation

during Fiscal Year 1995, the Commission determines that the agency can

still implement the evaluation albeit subsequent to the expiration of the

fiscal year identified in the agreement. Noting complainant's assertion

that the independent evaluation was a �crucial aspect� of the agreement,

we order specific performance of the settlement agreement.

Accordingly, the agency's decision finding no breach of the settlement

agreement is REVERSED. This matter is REMANDED to the agency for

implementation of the terms of the settlement agreement, in accordance

with the Order below.

ORDER

The agency is ORDERED to implement the terms of the settlement agreement

within sixty (60) calendar days of the date that the decision becomes

final. Specifically, the agency is ordered to have an independent agency

conduct a Personnel Management Evaluation, including EEO, of the Commodity

Testing Laboratory, now located in Kansas City.

The agency shall provide the Commission with proof of its implementation

of the agreement, including a copy of the Personnel Management Evaluation

of the Commodity Testing Laboratory, as set forth below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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 19848,

Washington, D.C. 20036. 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)(Supp. V 1993). 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 (M0900)

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 (R0900)

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 (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

December 21, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply the

revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2We note that in its final decision, the agency stated that complainant

alleged breach of the agreement on two prior occasions; and that on June

10, 1996, the agency issued a decision finding it was in compliance with

provisions 1 and 2. The Commission notes that provisions 1 and 2 are

not at issue in the instant appeal.