0120070790
04-05-2007
Joe L. Bleach, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Joe L. Bleach,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120070790
Agency No. ARFTBELVO04MAY0034
DECISION
Complainant filed a timely appeal with this Commission alleging that the
agency failed to respond to his claim of breach of the terms of the August
2, 2005 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:
(1) The agency reassign complainant effective August 7, 2003,
from the position of Training/Facility Coordinator, GS-303-07, in the
Plans and Operations Division, to Security Assistant, GS-086-07, in the
Security Division. Supervisor 1 will be complainant's supervisor at the
commencement of this agreement. However, the supervisor may change from
time-to-time, depending on the needs of the agency.
By letter to the agency dated September 19, 2006, 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 breached the settlement agreement when he received
a memorandum from his previous second line supervisor (SL Supervisor)
dated September 6, 2006. Complainant had been reassigned to the Security
Assistant position however, the SL Supervisor required complainant to
continue to perform one of his previous duties until a replacement for
complainant could be found. The memorandum indicated that complainant
would do the additional former duty as well as his duties as a Security
Assistant. Furthermore, complainant would perform his duties under
Supervisor 1, not Supervisor 2 from the Plans and Operations Division
against whom complainant's EEO complaint had been filed.
The agency failed to respond to complainant's claim of breach of the
settlement agreement. Complainant appealed. The agency responded noting
that the agency needed complainant to continue to perform certain duties
of his Training/Facility Coordinator position. There was no one with the
proper training who could have performed complainant's former duty until
a replacement could be found. Supervisor 1 and the SL Supervisor averred
that the duty only constituted about one percent of complainant's time.
Complainant appealed asserting that the settlement agreement was clear
in that he was to be reassigned to the Security Assistant position.
Further, complainant indicated that he is no longer with the agency and
sought reinstatement of his previous complaint.
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 O v. United States Postal Serv.,
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, the record establishes that, pursuant to the
settlement agreement, complainant was reassigned to the Security
Assistant position pursuant to the settlement agreement. We have
carefully examined the record to ensure that the agency did not attempt
to circumvent the settlement agreement by maintaining complainant on
paper in his new position, while having continue to work in his previous
position. However, this was not the case. Complainant was reassigned
to the promised position. While the agency required complainant to
continue to perform one task of his former position, that task required
a very minor percent of his time. Furthermore, there was no indication
that complainant was required to have any contact or be supervised by
Supervisor 2 who allegedly subjected complainant to discrimination. There
is no indication that Supervisor 2 had any authority over complainant.
Therefore, we find that complainant has not shown that the memorandum
constituted breach of the settlement agreement.
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 5, 2007
__________________
Date
2
0120070790
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120070790