Frederick A. Reid, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMar 23, 2000
01990564 (E.E.O.C. Mar. 23, 2000)

01990564

03-23-2000

Frederick A. Reid, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Frederick A. Reid v. Department of the Army

01990564

March 23, 2000

Frederick A. Reid, )

Complainant, )

)

v. )

) Appeal No. 01990564

Louis Caldera, ) Agency No. BEFLF 09705H0170

Secretary, )

Department of the Army, )

Agency. )

____________________________________)

DECISION

On October 5, 1998, complainant filed an appeal with this Commission after

receiving no response from the agency to his notice of settlement breach

dated August 19, 1998.<1> A complainant may appeal to the Commission for

a determination as to whether the agency has complied with the terms of a

settlement agreement no sooner than thirty-five days after serving notice

to the agency, when the agency fails to respond to the notice of breach.

See EEOC Regulation 37,644, 37,660 (1999)(to be codified and hereinafter

referred to as EEOC Regulations 29 C.F.R. � 1614.504(b)). Accordingly,

the appeal is accepted.

A review of the record reveals that complainant filed a formal

EEO complaint, Case No. BEFLFO9705H0170, alleging that he had been

subjected to unlawful employment discrimination based on race (Hispanic),

national origin (Belize Central American), and reprisal. The agency

accepted complainant's complaint for processing and an investigator was

assigned. On April 29, 1998, during a pre-conference meeting of the Fact

Finding Conference, the complainant and agency settled the complaint.

The settlement agreement provided, in pertinent part, that:

Within 90 days of the effective date of this agreement, reassign

the complainant as a team leader under the Director of Engineering;

assign Person A and Person B to the Complainant's team; coordinate with

the Complainant the reassignment of two additional personnel to the

Complainant's team. Management retains the final decision regarding

the personnel assigned to the team. The Complainant understands that

there is a pending reengineering of the Center for Public Works (CPW)

which may result in a change to the organizational structure to which

the agency has agreed to assign the complainant.

Within 45 days of the effective date of this agreement, develop a clear

delineation of internal control responsibilities within the agency that

meet the spirit and intent of Army internal control policies.

Within 30 calendar days of the effective date of this agreement, Chief,

DPW Management Division, will issue a written notification that the

Letter of Counseling, dated 10 April 1997 has been removed from all

official files.

Actively and aggressively support and endorse the Complainant's

applications for the courses listed below. The Complainant understands

that as a result of the pending reengineering of CPW which could result

in reassignments and/or realignments, that these courses may not be

applicable to his future job responsibilities.

Within 90 days from the effective date of this agreement, establish a

plan to ensure career development and equal treatment of minorities with

emphasis on under represented groups.

By letter to the agency dated August 19, 1998, complainant alleged that

the agency was in breach of the settlement agreement and requested

that his complaint be reinstated. Specifically, complainant alleged

that the agency violated provision a. when it notified him that he,

along with Person A and Person B, would be assigned to Person C's team.

Person C would be the supervisor, rather than complainant. According to

complainant, provisions b. and e. have not been fulfilled by the agency.

With regard to provision c., complainant contends that the notification

was untimely issued and its contents do "not meet the spirit of the

agreement...." Complainant claims that since the Center for Public

Works will be disestablished, the courses provided for in provision

d. will not be provided.

64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

referred to as 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).

Further, an complainant alleging a breach of an agreement has the burden

of showing that the agency did not comply with the settlement agreement.

See Moore v. Department of the Navy, EEOC Appeal No. 01931395 (April 14,

1993), Request to Reconsider Denied, Moore v. Department of the Navy,

EEOC Request No. 05930694 (April 7, 1994).

Provision a.

In the instant case, the Commission finds that the agency did not comply

with provision a. of the settlement agreement. Provision a. clearly

states that complainant will be reassigned as a team leader under the

Director of Engineering. However, complainant has provided an e-mail,

dated July 20, 1998, stating that complainant will be transferred to a

team where Person C will be the supervisor. Specifically, the e-mail

message indicates, in pertinent part, that "Personnel to be transferred

with the mission were [Person A, Person B, and complainant]. . . . . ."

The e-mail message further indicated that a named agency official would

be the supervisor. The e-mail message reflects that complainant was

not reassigned as a team leader under the Director of Engineering, as

articulated in provision a. of the settlement agreement. The agency

does not refute complainant's claim. Accordingly, we find that the

agency breached the settlement agreement.

Provisions b. and e.

With regard to provision b. (delineation of responsibilities) and e. (plan

for equal treatment), we find that complainant has not met his burden.

Complainant has not included in the record any evidence supporting these

claims of breach.

Provisions c. and d.

A review of the record also reveals that provisions c. and d. have not

been breached. Pursuant to provision c., the agency issued a memorandum

stating that the Statement of Counseling, dated April 10, 1997, was not

part of any official nor unofficial files. Complainant argued that the

contents of the memorandum did not meet the "spirit" of the settlement

agreement. However, we find that the document meets the plain meaning of

the requirement set forth in provision c., namely a written notification

that the Letter of Counseling has been removed from official files.

Provision d. requires the agency to "[a]ctively and aggressively support

and endorse the Complainant's applications for the courses". Complainant

has alleged that she does not believe that the courses will be provided,

but she has failed to show that the agency has not supported and endorsed

her applications, as they are required to do under provision d.

Finally, on appeal complainant also refers to a dispute with a Center

for Public Works employee. This is not an action covered by the

instant agreement. If complainant wishes to pursue this new matter,

he is advised to EEO counseling and file a separate complaint thereon.

See 29 C.F.R. � 1614.504(c).

Once a breach is found, as in the instant case, the remedial relief

is either the reinstatement of the complaint for further processing or

specific enforcement of the settlement agreement. If a complainant's

complaint is reinstated for further processing, then the parties must

be returned to the status quo at the time that the parties entered into

the settlement agreement, which requires that an complainant return any

benefits received pursuant to the settlement agreement. See, e.g. Armour

v. Department of Defense, EEOC Appeal No. 01965593 (June 24, 1997);

Komiskey v. Department of the Army, EEOC Appeal No. 01955696 (September

5, 1996). In the instant case complainant has requested reinstatement

of his complaint.

Accordingly, the agency finding of no settlement breach is REVERSED.

The matter is REMANDED to the agency for reinstatement of the complaint

for further processing.

ORDER

Within 30 days of the date this decision becomes final the agency

shall reinstate the settled matter from the point processing ceased

and thereafter process the matter in accordance with Part 1614

Regulations. Within 30 days of the date this decision becomes final,

the agency shall notify complainant in writing that it has reinstated

the purportedly settled matter and will process the matter in accordance

with EEOC Regulations. A copy of the letter notifying complainant of

the reinstatement of his EEO matter must be submitted to the Compliance

Officer, as referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64 Fed. Reg. 37,644,

37,659-60 (1999) (to be codified and hereinafter referred to as 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 provision 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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (R1199)

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:

March 23, 2000 _____________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________ ______________________________

Date Equal Employment Assistant

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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.