01A04870_r
10-19-2001
Julian Hernandez, Jr., Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Julian Hernandez, Jr. v. Department of the Army
01A04870
October 19, 2001
.
Julian Hernandez, Jr.,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A04870
Agency No. BHAAFO9908J0550
DECISION
Complainant filed a timely appeal with this Commission from a final
decision by the agency dated June 16, 2000, finding that it was in
compliance with the terms of the April 27, 2000 settlement agreement
into which the parties entered.
The settlement agreement provided, in pertinent part, that:
2. In exchange for the promise made by Complainant . . . the Agency
agrees to:
a. Make a good faith effort to help facilitate a reassignment within
the Corpus Christi Army Depot (CCAD) and/or a �job swap� to a position
for which the Complainant is qualified.
b. [The] Director, U.S. Army-Test Measurement and Diagnostic Equipment
Activity (TMDE), Redstone Arsenal, Alabama, will contact [the] Civilian
Executive at CCAD within 30 days to help facilitate the Complainant's
request for reassignment to a position within CCAD for which the
complainant is qualified and/or to help facilitate a �job swap.�
By letter to the agency dated June 5, 2000, 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 take any action to comply with the
agreement.
In its June 16, 2000 decision (written by the Director at TMDE), the
agency concluded that the agency complied with the settlement agreement in
a timely manner. Specifically, the Director stated that he contacted the
Civilian Executive at CCAD on May 15, 2000, and discussed job openings
but that the CCAD had no vacancies for which they were recruiting in
complainant's series and grade. The Director stated that they also
discussed job swaps, but could not initiate them because they are
voluntary moves, and because of an ongoing Reduction In Force at TMDE.
The decision also stated that, although not part of the agreement,
the Director had inquired about possible expanded Voluntary Separation
Incentive Pay (VISP) coverage for complainant.
On appeal, complainant acknowledges that the Director of TMDE spoke with
Civilian Executive at CCAD concerning job openings and job swaps on May
15, 2000, but that he was told by the Civilian Executive that he �[w]as
not interested in picking him up.� Complainant also asserted that the
CCAD legal counsel �badgered, falsely accused, and attempted to bait
complainant,� and that the agency had not acted in good faith.
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 that complainant has not shown that the
agency breached the settlement agreement. The agreement states that the
agency would make a good faith effort to help facilitate a reassignment
within CCAD and/or a �job swap� to a position for which complainant
was qualified, and that the Director of TMDE would contact the Civilian
Executive at CCAD within 30 days toward that end. The record is clear,
and complainant admits on appeal, that the Director of TMDE contacted the
Civilian Executive at CCAD within 30 days of the agreement in an attempt
to facilitate a reassignment or a job swap within CCAD. The record is
also clear that the Director made at least one attempt outside of the
agreement to aid complainant in a reassignment. Although complainant
asserts that the agency did not make a good faith effort as required, he
has failed to show how the agency's actions with regard to the settlement
were in bad faith. Contrary to complainant's implicit claims, the simple
failure of the agency's efforts to find complainant a new position as a
reassignment or a job swap does not constitute bad faith. If complainant
wished there to be a requirement that the agency find him a new position
or a job swap, he should have made that part of the agreement.
Accordingly, as complainant has not shown breach of the settlement
agreement, the agency's decision 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
October 19, 2001
__________________
Date