01a52390
04-19-2006
Jerry Sussman, Complainant, v. Martin J. Gruenberg, Acting Chairman, Federal Deposit Insurance Corporation, Agency.
Jerry Sussman,
Complainant,
v.
Martin J. Gruenberg,
Acting Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 01A52390
Agency No. FDICGC990007
DECISION
JURISDICTION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated February 1, 2005, finding that it
was in compliance with the terms of the January 12, 2001 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:
(d) The (complainant) acknowledges that the method of assigning work
on the rotational basis is not scientific. The (complainant) acknowledges
that the (sic) he has certain talents and that management will draw upon
those talents and abilities in carrying out the (agency's) mission. The
(agency) acknowledges that it will recognize (complainant's) talents and
abilities and fairly treat and rate (complainant's) performance.
By email to the agency dated December 29, 2004, 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 upgrade his position from a grade
14 to a grade 15 and failed to rate him work properly and give him a
Corporate Success Award (CSA).
In its February 1, 2005 FAD, the agency concluded that it had not breached
the award. With respect to complainant's rating, the agency noted it
has a two tier rating system of either 'meets expectations' or 'does
not meet expectations'. Complainant was given a 'meets expectations'
in all elements. Further, the agency noted that with respect to
the upgrade of complainant's position, the settlement agreement was
entered into to settle that issue and it did not specifically call for
such an upgrade. The Commission notes that complainant received other
consideration not mentioned herein.
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, we find that the language of provision (d) of
the settlement agreement is clear and unambiguous, and based on its
"plain meaning," that the settlement agreement specifically requires the
agency to recognize complainant's abilities, and rate and treat him
fairly. Here, complainant received a 'meets expectations' in all elements
on his appraisal. The settlement agreement does not say that complainant
would receive a CSA - let alone one that was instituted nearly 3 years
after he signed his agreement - or that his position would be upgraded.1
Accordingly, the agency's decision finding no breach is affirmed.
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
April 19, 2006
__________________
Date
1 The issue of denial of an award may be raised as a separate
complaint. It appears Complainant may have already contacted an EEO
counselor and filed a formal complaint regarding the issue.
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01A52390
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A52390