0120103399
04-20-2012
Eduardo Emmons, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Threat Reduction Agency), Agency.
Eduardo Emmons,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Threat Reduction Agency),
Agency.
Appeal No. 0120103399
Agency No. DTRA-06-CX-006
DECISION
Upon review, the Commission finds that the Agency properly determined
that it did not breach a settlement agreement that the parties entered
into resolving Complainant’s complaint. See 29 C.F.R. § 1614.504.
For the following reasons, we AFFIRM the Agency’s determination not
to reinstate Complainant’s complaint.
BACKGROUND
The record indicates that the parties entered into a settlement agreement,
dated October 26, 2007, resolving the complaint. The settlement agreement
provided, in pertinent part, that the Agency agrees to:
3. a. As soon as possible but within 90 days of the execution of this
agreement, the Agency will promote Complainant from Pay Band Level II to
Pay Band Level III to include a 7% increase in base pay as calculated
under Department of Defense regulations and rules under the National
Security Personnel System (NSPS). If the time period required to
achieve this promotion shall exceed 90 days, the Agency agrees to make
the promotion retroactive to the 90th day.
On June 25, 2010, Complainant alleged that the Agency breached Paragraph
3.a. of the settlement agreement. Specifically, Complainant claimed that
on June 18, 2010, he was notified by the Agency that he would be a GS-14,
Step 8, and not GS-15, Step 3, from his Pay Band Level III position
(YA-03) during the Agency’s conversion from NSPS to GS. On July 12,
2010, the Agency issued its determination letter indicating that it did
not breach the settlement agreement.
ANALYSIS AND FINDINGS
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. Dep’t of Def., 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. Dep’t 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. U.S. Postal Serv.,
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 response to Complainant’s claim, the Agency states that it did not
breach Paragraph 3.a. of the settlement agreement. Specifically, the
Agency submits evidence indicating that in accordance with the settlement
agreement, Complainant was promoted to Pay Band Level III and received
a 7% raise effective January 6, 2008, which was within 90 days of the
October 26, 2007 settlement agreement. Complainant does not dispute this.
After a review of the record, we find that the alleged June 18, 2010
incident, i.e., Complainant’s position conversion from NSPS to GS, was
not within the purview of the settlement agreement. Complainant does
not dispute the subsequent intervening event of the Agency converting
from NSPS to GS pay system. Furthermore, the settlement agreement did
not provide that Complainant would be placed in a GS-15 position if the
Agency were to convert its pay system from NSPS to GS.
CONCLUSION
Accordingly, the Agency’s decision finding no settlement breach is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
4/20/12
__________________
Date
2
0120103399
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120103399