01A13945_r
07-11-2002
Irving T. White, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Irving T. White v. Department of the Navy
01A13945
July 11, 2002
.
Irving T. White,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A13945
Agency No. 00-62793-057
DECISION
Complainant filed a timely appeal with this Commission from a decision
by the agency dated May 8, 2001, finding that it was in compliance with
the terms of the January 24, 2001 settlement agreement into which the
parties entered.
The settlement agreement provided, in pertinent part, that:
4a.(1) SUPSHIPNN agrees to place the complainant in the 5/7/9 Upward
Mobility Position 201Q at the GS-7 grade level.
By letter to the agency dated April 23, 2001, complainant alleged that
the agency was in breach of the settlement agreement, and requested that
the agency specifically implement its terms. Specifically, complainant
alleged that the agency failed to place him in the position described in
Merit Staffing Announcement YK00/2331/JC, Data Management Specialist,
Code 201Q. Complainant contends that this was the position open at
the time of the settlement negotiations. Complainant states that he
applied for it and was on the best qualified certificate for it and
it is this position into which the parties agreed he was to be placed.
Complainant alleges that after execution of the agreement, the agency
denied him this position and created another, lesser position into which
he has been placed, while another selectee was placed in the original,
vacant position, in breach of the settlement agreement.
In its May 8, 2001 decision, the agency concluded that following execution
of the settlement agreement, the agency discovered that it was against
agency regulations to promote complainant into an "Upward Mobility"
position. Instead, complainant was placed into a new position with the
same title, same job description, but one with a career ladder, which
effectively gives him the same promotion potential as the original "Upward
Mobility" position. The agency further concludes that the settlement
agreement is silent regarding any specific announcement number and that
was never part of the negotiated agreement.
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).
In the instant case, we find the agency correctly determined that it
has complied with the terms of the settlement agreement. A Notice of
Personnel Action, (form SF-50), effective January 28, 2001, confirms
complainant has been placed in the position of Data Management Specialist,
GS-0301-07. This Notice states, under "remarks" as follows:
Upward Mobility Trainee Position, target GS-07, with known promotion
potential to GS-09. Full performance level of employee's position
is GS-09.
Accordingly, we AFFIRM the agency's determination that no breach of the
January 24, 2001 settlement agreement occurred.
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 (S0900)
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
July 11, 2002
__________________
Date