01A30918_r
03-26-2003
Derald D. Schlecht, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency) Agency.
Derald D. Schlecht v. Department of Defense
01A30918
March 26, 2003
.
Derald D. Schlecht,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency)
Agency.
Appeal No. 01A30918
Agency No. 99DCMW16001
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated October 11, 2002, finding that it was in compliance with
the terms of a July 15, 1999 settlement agreement. See 29 C.F.R. �
1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The July 15, 1999 settlement agreement provided, in pertinent part, to:
(c) Change complainant's work schedule from 32 hours part-time to 40
hours full-time.<1>
By letter dated September 22, 2002, complainant, through his
representative, alleged that the agency breached the settlement agreement.
Specifically, complainant alleged that the agency breached provision (c)
when he was given notice that his full-time position was being eliminated
and that he was offered a part-time position effective November 17, 2002.
Complainant requested that the agency honor the July 15, 1999 settlement
agreement by placing him in a full-time position.
In its October 11, 2002 final decision, the agency found no breach.
Specifically, the agency found that complainant was placed in a full-time
position following the execution of the July 15, 1999 agreement. Further,
the agency found that the unforeseen circumstances of a Reduction-In-Force
(RIF) caused complainant's full-time position to be eliminated.
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).
Provision (c) of the settlement agreement imposed upon the agency an
affirmative obligation to change complainant's part-time position to a
full-time position following the signing of the settlement agreement.
A review of the record reflects that the agency complied with provision
(c) by placing complainant in a full-time position for approximately
two years and four months. Provision (c) did not provide a time
limit on complainant's full-time position. The Commission has held
that a settlement agreement that places a complainant into a specific
position, without defining the length of service or other elements of the
employment relationship, will not be interpreted to require the agency
to employ the complainant in the identical job specified forever. See
Parker v. Department of Defense, EEOC Request No. 05910576 (August 30,
1991); Papac v. Department of Veterans Affairs, EEOC Request No. 05910808
(December 12, 1991); Elliott v. United States Postal Service, EEOC Request
No. 01970474 (August 27, 1997). Therefore, we find that the agency
did not breach provision (c), as it placed complainant in a full-time
position identified in the settlement agreement for over two years,
until an unforeseen RIF resulted in the agency offering complainant a
part-time position in its place.
Accordingly, the agency's final decision finding no settlement breach
is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (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
March 26, 2003
__________________
Date
1The settlement agreement contained various
other provisions, i.e., other employees would receive EEO and Disability
Awareness training; a Region Director would visit the Minot Commissary
within 180 days of the agreement; and a payment to complainant of $1,000.
Those provisions are not at issue in the instant appeal.