Hugh Wright, Complainant,v.Aida Alvarez, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity CommissionAug 18, 2000
01994347 (E.E.O.C. Aug. 18, 2000)

01994347

08-18-2000

Hugh Wright, Complainant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.


Hugh Wright v. Small Business Administration

01994347

August 18, 2000

.

Hugh Wright,

Complainant,

v.

Aida Alvarez,

Administrator,

Small Business Administration,

Agency.

Appeal No. 01994347

Agency No. 06-95-486

DECISION

Complainant timely appealed the agency's decision not to reinstate his

complaint of unlawful employment discrimination that the parties had

settled.<1> See 64 Fed. Reg. 37,644, 37,659 - 37,660 (1999)(to be

codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �

1614.402(a), � 1614.405, and � 1614.504)).

On June 8, 1995, complainant filed a formal complaint claiming

discrimination based on race and national origin. On September 25,

1997, complainant and the agency entered a settlement agreement, wherein

complainant agreed to withdraw his formal complaint. The settlement

agreement provided, in pertinent part, that:

(1) Complainant will accept a voluntary assignment to the position of

Export Development Specialist, GS-13, located in Clayton, Missouri,

with a reporting date of October 14, 1997. The Agency agrees that this

assignment and change of official station are in the interest of the

Government. Complainant will receive indefinite retained pay based on

his current pay at the GS-15 level, and the Agency will pay his relocation

expenses, in the manner and to the extent authorized by law.

(2) The Agency agrees that if the SES Candidate Development Program (�the

Program�) is opened for applications at any time while the Complainant

is occupying the GS-13 position referred to in paragraph 1 above, the

Agency will accept the Complainant's application for the program and

will not find him to be disqualified for the Program on the basis of

his grade level. The agency makes no promises that the Program will

be opened for applications at any time in the future. In addition,

if the Program is opened for applications and the Complainant applies,

the Agency makes no promises that he will make the best qualified list

or be selected for the Program.

(3) The Agency will pay Complainant and his attorney $13,830.05 in

attorney's fees and costs.

By letter to the agency dated February 11, 1999, complainant's attorney

contacted the agency regarding a proposed reassignment. According to

complainant, he was notified on February 5, 1999, by the District

Director that the agency proposed to reassign him from his Export

Development Specialist position at the U.S. Export Assistance Center

in Clayton, Missouri to the position of Assistant District Director

(ADD) of the 8(a) Business Development Program in St. Louis, Missouri.

In the February 11, 1999 letter, complainant contended that �the proposed

transfer, if effected, may violate the provisions of the September 25,

1997 settlement agreement...� and requested that the agency not implement

the reassignment.

The agency responded by letter dated February 23, 1999, stating that the

reassignment �in no way violates the terms of the settlement agreement

effected in September 1997.� The agency determined that the agreement

did not guarantee that complainant would remain in the Export Development

Specialist position for the duration of his career. Moreover, the agency

indicated that agency managers decided that complainant's knowledge and

skills would be best utilized in the ADD position in St. Louis.

On March 5, 1999, complainant alleged that the agency breached of the

settlement agreement, and requested that the agency implement its terms.

Specifically, complainant alleged that he was notified he would be

reassigned and that he must choose between two jobs, one of which was the

ADD of the 8(a) Business Development Program. Complainant alleged that

he entered the settlement agreement to move out of the 8(a) Program and

to make a �fresh start.� Complainant argues that by reassigning him,

the agency breached the agreement. After receiving no response from

the agency, complainant filed the instant appeal.

On appeal, complainant acknowledges that he began serving in the Export

Development Specialist position in October 1997, but that he entered the

agreement and withdrew his complaint, �with the expectation that he would

remain in [the Export position] indefinitely.� Further, complainant

argues that due to the stress he experienced in the 8(a) Program, he

�specifically bargained with the agency to be transferred out of the 8(a)

Program.� Complainant contends that when he was reassigned to the ADD

position, the agency breached the agreement. Complainant also argues

that the agency acted in bad faith, noting that it failed to provide

him with a reason for the reassignment.

In response, the agency states that it complied with the terms of the

agreement, by reassigning complainant to the Export Development Specialist

position on October 14, 1997. The agency notes that complainant remained

in the position until February 23, 1999, when he was reassigned to serve

as ADD for 8(a) Program.

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).

Although complainant states that he expected to remain in the Export

position indefinitely, this expectation is not reflected in the

settlement agreement. The settlement agreement does not include a

provision obligating the agency to keep complainant in the position

for a specific time period. As noted by both parties, complainant was

reassigned to the Export position in October 1997, and served in the

position for approximately sixteen months. The Commission has held

that if a settlement agreement does not include specific duration terms

for the employment relationship which could have been agreed upon,

it would be improper to interpret the reasonable intentions of the

parties as binding the agency to the terms thereof forever. See Parker

v. Department of Defense, EEOC Request No. 05910576 (August 30, 1991).

Complainant argues that he entered the agreement with the intention of

leaving the 8(a) Program, and therefore his transfer back to the program

breached the agreement. The language of the agreement, however, does

not support complainant's contentions.

Finally, we do not find evidence in the record that the agency acted

in bad faith. As noted above, complainant was placed in the Export

Development Specialist position and held the job for over a year.

While complainant contends that the agency acted in bad faith because they

failed to provide him with a reason for his reassignment, he presented

no evidence to support this contention. Consequently, we find that the

agency did not breach the agreement when complainant was reassigned to

the 8(a) Program.

Accordingly, the agency's decision finding that it was in compliance with

the terms of the settlement agreement was proper and is hereby AFFIRMED.

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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

August 18, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

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.