0120081775
08-20-2008
Frank T. Schmidt, Jr, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Frank T. Schmidt, Jr,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120081775
Agency No. 9U0J07006
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated February 6, 2008, finding that it
was in compliance with the terms of the May 9, 2007 settlement agreement
into which the parties entered. See 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:
(a) [Complainant] will continue to be the Base Multimedia Manager,
YC1001-02 assigned to manpower number (MPCN) 0J0264139;
(b) The pay plan assigned to MPCN 0J0264139 has been changed from
GS-0303-06 to YC-1001-02;
(c) [Complainant] will continue to have the same
duties/responsibilities as identified in his current Core Personnel
Document and will continue to supervise the same individuals he currently
supervises;
By letter to the agency dated January 4, 2008, complainant alleged that
the agency was in breach of provisions (a), (b), and (c) of the settlement
agreement, and requested that the agency specifically implement its terms.
Specifically, complainant alleged that the agency failed to honor the
terms of the agreement when, as a result of an agency's reorganization,
the two positions under his supervision were eliminated, and his job
was reclassified from a supervisory to a non-supervisory position.
In its FAD, the agency concluded that it was not in breach of the
settlement agreement. The agency explained that there was an agency-wide
merger of the offices of Public Affairs and Audio Visuals to improve
strategic communication efforts and create a more efficient organization.
The agency indicated that it was the intent of the settlement agreement
that complainant remain as a supervisor after the agency's reorganization,
but it did not foresee that the merging of complainant's organization with
another would require the elimination of two positions under complainant's
supervision. The agency stated that the merger mandated a reduction
in force (RIF) which required the elimination of the two positions
under complainant's supervision to meet the new manpower standards
required by headquarters for the reorganization. The agency stated that
because complainant no longer has employees under his supervision, his
position was automatically reclassified to a non-supervisory position.
The agency noted that while complainant's position was reclassified,
his salary remained the same.
On appeal, complainant alleges that the abolishment of the positions under
his supervision violates the settlement agreement. Complainant requested,
in pertinent part, that the agency honor the settlement agreement and
"restore the manpower slots to the SAFB Multimedia department."
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).
In the instant case, the record reflects that complainant's position
was altered due to an agency-wide reorganization. Nothing in the
record indicates that the parties could or should have anticipated
that the reorganization would encompass the implementation of a
reduction-in-force and the elimination of the two positions under
complainant's authority. Because the Commission favors the voluntary
resolution of discrimination complaints, settlement agreements are not
lightly set aside. However, the Commission will find the contract void if
coercion, misrepresentation, misinterpretation or mistake occur during the
formation of the contract, making assent to the agreement impossible. See
Shuman v. Department of the Navy, EEOC Request No. 05900744 (July 20,
1990). In the instant case, the Commission determines that the settlement
agreement is void as a matter of law. It appears that both parties
voluntarily entered into the agreement based on an assumption that the
impending agency reorganization would not impact on the positions under
complainant's supervision. Therefore, we find that the parties made
a mutual mistake in the formation of the settlement agreement. The
agreement is unenforceable because the parties operated under this
erroneous assumption. Because of this mutual mistake by the parties,
a mistake that we find material, the parties formed an agreement for
which compliance on the agency's part was impossible. The Commission,
therefore, determines that the settlement agreement is void.
Accordingly, we VACATE the agency's determination of no breach, and
REMAND the complaint to the agency for further processing in accordance
with the Order set forth below.
ORDER
Within thirty (30) calendar days of the date this decision becomes
final, the agency is ORDERED to resume processing complainant's complaint
pursuant to 29 C.F.R. Part 1614 from the point processing ceased when the
matter settled. A copy of the agency's notice reinstating the complaint
for processing must be sent to the Compliance Officer, as referenced
below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M0408)
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 (R0408)
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 (Z0408)
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
August 20, 2008
Date
2
0120081775
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120081775