01a40662_r
09-13-2004
Frank E. Orr, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Frank E. Orr v. Department of the Army
01A40662
September 13, 2004
.
Frank E. Orr,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A40662
Agency No. ARGORDON03APR0072
DECISION
Complainant timely appealed the agency's September 30, 2003 decision not
to reinstate his complaint of unlawful employment discrimination that the
parties had settled. See � 29 C.F.R. 1614.504. The record indicates
that on May 20, 2003, the parties entered into a settlement agreement
resolving complainant's complaint. The settlement agreement provided,
in pertinent part, that:
The Army agrees to:
Pursue the upgrade of the position of Supervisory Training Specialist,
GS-1712-12, . . .
Pursue funding the position of Supervisory Training Specialist,
GS-1712-13, as Chief . . .
By letter dated August 24, 2003, complainant alleged that the agency
breached the settlement agreement when it failed to promote him.
In response, the agency stated that the documentation provided by
management showed that management �vigorously pursued� the agreed
terms of the settlement agreement. The agency found that �the proposed
restructuring of all Training and Doctrine Command schools has precluded
management from doing anything more.� The agency found that it had
complied with the settlement agreement.
The Commission has held that settlement agreements are contracts between
the complainant and the agency and it is the intent of the parties
as expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule
when interpreting settlement agreements. The Commission's policy in
this regard is based on the premise that the face of the agreement best
reflects the understanding of the parties. Although the Commission is not
generally concerned with the adequacy or fairness of the consideration in
a settlement agreement as long as some legal detriment is incurred as part
of the bargain, when one of the parties to a settlement incurs no legal
detriment, the agreement will be set aside for lack of consideration.
See Morita v. Department of the Air Force, EEOC Request No. 05960450
(December 12, 1997).
In the instant case, the Commission finds that the settlement agreement
is too vague to be implemented. The Commission has previously held
that a binding settlement agreement requires a contemporaneous meeting
of the minds. See Brown v. Department of Defense (DLA), EEOC Request
No. 05940628 (November 3, 1994); Mullen v. Department of the Navy,
EEOC Request No. 05890349 (May 18, 1989). After a careful review of
the settlement agreement, the Commission finds that the terms thereof
lack the specificity necessary to permit enforcement. The settlement
agreement provides for the agency's promise to �pursue� the upgrade of
GS-12 position and funding GS-13 position at issue, i.e., complainant's
promotion. However, the Commission notes that the settlement agreement
does not provide specific details of the agency's required implementation,
i.e., the specific steps to be taken in order to show that it �pursued�
the upgrading and funding of the positions at issue. Therefore, the
Commission finds that the settlement agreement is void and we shall
order the agency to reinstate the settled matter.
Accordingly, the agency's decision is VACATED and the matter is REMANDED
to the agency for reinstatement of the settled matter from the point at
which processing ceased.
ORDER
The agency, within 30 calendar days of the date this decision becomes
final, shall resume processing of the settled matter from the point
processing ceased in accordance with 29 C.F.R. Part 1614 Regulations. The
agency, within 30 calendar days of the date this decision becomes final,
shall notify the complainant that it has resumed processing the settled
matter.
A copy of the agency's letter to complainant notifying him of the
resumption of processing of the settled matter must be sent to the
Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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)
(1994 & Supp. IV 1999). 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 (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 (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
September 13, 2004
__________________
Date