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.