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.