01982014
05-22-2000
Larry Green, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Larry Green, )
Complainant, )
)
v. ) Appeal No. 01982014
) Agency No. 93-2147
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
(Internal Revenue Service), )
Agency. )
_______________________________ )
DECISION
On January 14, 1998, complainant filed a timely appeal with the Commission
for a determination concerning the agency's alleged failure to comply with
a September 30, 1993 settlement agreement (SA, or the agreement), and
to have his underlying EEO complaint reinstated at the point processing
ceased, which was at the conclusion of the investigation of his complaint
and prior to a hearing before an EEOC administrative judge as requested
by complainant's representative.<1> See 64 Fed. Reg. 37,660(1999)(to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.504), in pertinent parts.
The Commission briefly reviews the following chronology of salient
events. Complainant filed a formal EEO complaint dated February 16,
1993, alleging that, for prohibited reasons, the agency removed him from
his position as a GM-512-13 Group Manager in the Employee Plans/Exempt
Organizations (EP/EO) Division of the Atlanta, Georgia District, Southeast
Region, and reassigned him to the position of GS-512-13 Revenue Agent.
On September 30, 1993, complainant and the agency entered into the
SA at issue. The agreement contained the following provisions, in
pertinent part:
(1) The Agency will assign [complainant] the second available GM-512-13
Group Manager's position or equivalent in the [EP/EO] Division in the
Atlanta Key District [AKD] in metro-Atlanta.
(2) Based upon the pending reorganization/realignment of the EP/EO
Division functions nationwide, and in the [AKD], it is understood that
there may not be any future Group Manager, GM-512-13 vacancies in the
EP/EO Division in the [AKD] within metro-Atlanta. Additionally, future
EP/EO Division General Manager vacancies, if any, in metro-Atlanta,
may be in the Atlanta Service Center [ASC] and not the [AKD] based upon
the result of the EP/EO nationwide realignment. If the EP/EO nationwide
realignment results in the relocation to the [ASC], then [complainant]
will receive the second available GM-512-13 Group Manager position or
equivalent in the EP/EO Division at the [ASC] in metro-Atlanta.
(3) The agreement in paragraph 1 above does not prevent future
reorganization/realignment based on further consolidation(s) or merger(s)
of groups resulting from an increase in the span of control and possible
further reduction(s) in the number of GM-512-13 group manager positions
in the EP/EO Division in the [AKD] in metro Atlanta.
(4) Effective September 19, 1993, [complainant] will be converted to a
funded GS-512-13 Revenue Agent position in the Atlanta POD (Post of Duty)
of the EP/EO Division, [AKD]. [Complainant] will receive Acting Group
Manager details, as available.
In correspondence, dated September 22, 1996, to the agency's headquarters
in Washington, D.C., complainant, by his representative, sought to have
the SA set aside. Complainant stated, in relevant part, that he �now
wishes to reinstate his original complaint.� Instead of raising specific
allegations of noncompliance, complainant cited the matter of Employee
�A�, another agency manager who had been reassigned as had complainant,
who had the same representative as complainant, and who, on September 23,
1993, entered into a nearly identical SA as had complainant. The only
significant substantive difference between the SAs was that Employee
�A's� SA provided that she would receive �the next available GM-512-13
Group Manager's position or equivalent in the [EP/EO] Division in the
[AKD] in metro-Atlanta.� In his September 22, 1996 correspondence,
complainant stated, in relevant part, that the Commission had nullified
Employee A's SA for lack of consideration.
The agency responded by letter dated October 23, 1996, requesting the
particulars of complainant's claim of noncompliance. In a November 2,
1996 reply, complainant repeated his contention that the SA was void,
�lacking mutuality, meeting of the minds, and consideration.� The agency,
in a November 12, 1996 response, requested that complainant specify which
provisions of the SA he was alleging the agency had breached. Complainant
repeated his assertion that the SA was a nullity, in November 21, 1996
correspondence to the agency. However, complainant also alleged the
following, in pertinent part:
[I]f you feel that it is material that an actual breach has taken place,
please note the provision #4 provides that for an indefinite period,
[complainant] would be afforded the opportunity to act as a manager when
his former management peers were absent from their duties....To date,
management has not provided such assignments even though the three year
period since the agreement, [sic] each manager in the division probably
requested and was granted, 26 days of annual leave.
In a January 16, 1997 letter, the agency advised complainant that, inter
alia, it would investigate the merits of his claim of noncompliance
and that he could file an appeal with the Commission in the interim in
accordance with 29 C.F.R. � 1614.504(b).
The record in this matter is not entirely clear. We note in particular
that a February 6, 1997 internal agency memorandum (�the memorandum�),
which purported to summarize the findings of �an inquiry into this
matter,� set forth the conclusion that the agency had not breached
the SA. The memorandum cited a purported January 12, 1996 letter from
complainant's representative alleging a breach of provision (1) when
the agency purportedly �failed to select [complainant] for one of two
managerial positions.� However, no such letter appears to have been
contained in the case file transmitted to the Commission in this appeal.
Further, the cited January 12, 1996 letter predates by some eight months
what appears to be complainant's initial September 22, 1996 noncompliance
notice to the agency.
With regard to complainant's apparent nonselection, allegedly in violation
of provision (1) of the SA, the memorandum averred that the agency had
�advised [complainant's representative] that both promotions resulted
from span of control and grade structure changes. Management further
advised that since neither promotion was based on a vacancy, no breach
had occurred.�
The memorandum also declared the agency to be in compliance with provision
(4) of the SA when complainant �was reassigned to a GS-512-13 revenue
agent [sic], as agreed. Management also provided [complainant] with
�acting manager assignments, as available.'� The memorandum stated
that �[u]pon execution of the [SA],[complainant was given] �acting
manager assignments as an [AKD] employee.� The memorandum further noted
that complainant had become �a Delaware-Maryland Key District [DMKD]
employee,� and had been �reassigned to the Review Staff [apparently,
while complainant was still with the AKD and just before joining the
DMKD].� The memorandum declared, inter alia, that �[complainant] has not
received any acting manager assignments while assigned to the Review Staff
[purportedly as part of an �extended assignment�] due to substantive
workload issues.� However, the memorandum also noted, in relevant part,
that Review Staff had been eliminated in Atlanta and complainant had been
reassigned to an examination group in which he was currently working,
and would not become available for assignment as an acting manager
until he finished reviewing cases, at which time complainant would �be
considered first for the next acting manager assignments.�
By letter dated June 25, 1997, complainant informed the agency, in
pertinent part, that he wanted to pursue the underlying complaint and
an additional complaint, purportedly filed under agency case number
93-022C.<2> In a July 2, 1997 response, the agency advised complainant
that it had completed its investigation of his claim of noncompliance,
but would delay issuing a determination pending the outcome of the
agency's request for reconsideration by the Commission of a previous
Commission decision pertaining to the validity of Employee �A's� SA.
Complainant's present appeal followed.
Complainant has raised no new contentions in his appeal. In response to
complainant's appeal, the agency has relied on the Commission's decision,
regarding Employee �A,� in Miller v. Department of the Treasury, EEOC
Request No. 05960622 (December 5, 1997), and argues that complainant
should, consequently, be collaterally estopped from prevailing in the
present matter.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily entered into to by the parties shall
be binding on both parties. That section further provides that, if the
complainant believes the agency has failed to comply with the terms
of a settlement agreement, the complainant shall notify the Director
of Equal Employment Opportunity of the alleged noncompliance with the
settlement agreement, in writing, �within 30 days of when the complainant
knew or should have known of the alleged noncompliance. The complainant
may request that the terms of the settlement agreement be specifically
implemented or, alternatively, that the complaint be reinstated for
further processing from the point processing ceased.�
Further, in accordance with 29 C.F.R. � 1614.504(b), a complainant may
file an appeal 35 days after serving notice of noncompliance on the
agency, but must file an appeal within 30 days of receiving the FAD.
The Commission may order reinstatement of the underlying complaint(s),
direct compliance, or require the production of additional evidence,
pursuant to 29 C.F.R. � 1614.504(c). The latter regulation also mandates
that allegations that subsequent acts of discrimination violate the
SA must be processed as separate complaints, and not as allegations of
breach of an SA.
Settlement agreements are contracts between the complainant and the
agency and it is the intent of the parties as expressed in the contract,
and not some unexpressed intention, that controls the contract's
construction. Eggleston v. Department of Veterans Affairs, EEOC Request
No. 05900795 (Aug. 23, 1990); In re Chicago & E.I. Ry. Co., 94 F.2d
296 (7th Cir. 1938). In addition, the Commission generally follows the
rule that if a 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. Montgomery Elevator
v. Building Eng'g Servs., 730 F.2d 377 (5th Cir. 1984). In Klein
v. Department of Housing and Urban Development, EEOC Request No. 05940033
(June 30, 1994), we stated we would not resort to extrinsic evidence,
outside the four corners of the agreement, to determine the meaning of a
writing which appeared to be facially plain and unambiguous. However,
in Wong v. U.S. Postal Service, EEOC Request No. 05931097 (April 29,
1994), we stated that "where the terms of the document are ambiguous
or for equitable reasons, the Commission may go beyond the language of
the agreement and look at the intent of the parties to the agreement"
(citation omitted). In addition, the burden of proving an agency has
breached an agreement is on the complainant. Moore v. Department of
the Navy, EEOC Request No. 05930694 (April 7, 1994).
In the present case, we address the threshold question of the validity
of the agreement. In Miller v. Department of the Treasury, EEOC Appeal
No. 01955008 (May 17, 1996) (�Miller I�), the Commission found the
SA between Employee �A� and the agency to be unenforceable for lack
of consideration. In Miller I, the Commission found Employee �A� had
�received no consideration for her promise to withdraw her complaint.�
The Commission concluded �that the agency's promise that it would appoint
[Employee �A�] to the next available GM-512-13 Group Manager position in
the EP/EO Division in Atlanta was illusory, based upon the nationwide
reorganization and realignment of agency EP/EO Divisions pending at
the time of [Employee �A's�] entry into the [SA].� Id. Accordingly,
the Commission reversed the agency's final decision finding no breach
of the SA had occurred. Id.
However, in Miller v. Department of the Treasury, EEOC Request
No. 05960622 (December 5, 1997)(�Miller II�), the Commission granted the
agency's request for reconsideration, reversed Miller I, and affirmed
the agency's final decision. In Miller II, the Commission determined
that the SA valid. The Commission determined that the record revealed
�that the parties were fully aware of the possibility of a nationwide
reorganization. [Employee �A�], with full knowledge of the risk that
there might not be any future Group Manager vacancies in the Atlanta area,
entered into the agreement.� The Commission also determined, in Miller
II, that Employee �A� received �consideration for her promise to withdraw
her EEO complaints,� when she �was converted to a funded GS-512-13
Revenue Agent in September 1993,� as the agency had promised in the SA.<3>
The Commission further sustained the agency, in Miller II, in relevant
part, regarding the merits of Employee �A's� claim of noncompliance
when she allegedly did not receive a purportedly vacant Group Manager's
position (a position the agency declared had been eliminated as a result
of a reorganization). As to that issue, the Commission stated:
The plain meaning of provision (1) is that [Employee �A�] would be placed
in the next available Group Manager position or its equivalent in the
EP/EO division in the Atlanta Key District [AKD]. A review of provisions
(2) and (3) [indicates] that the parties recognized that, because of the
pending nationwide reorganization, there might not be any future Group
Manager vacancies in the [AKD]. We find no guarantee in the terms of
the [SA] that a Group Manager position would ever become available.
If [Employee �A�] had some other interpretation, then she should have
insured that it was expressly set forth in the [SA].
Turning now to the present matter, we find controlling our decision in
Miller II and, accordingly, are not persuaded by complainant's arguments
to have his SA with the agency nullified.<4> With respect to the merits
of complainant's contention of agency noncompliance with the SA, the
Commission finds the agency's February 6, 1997 memorandum, discussed
above, conclusory, lacking in underlying supporting documentation, and the
record as a whole inadequate for a determination. We find, for example,
no evidence that complainant raised the issue of agency noncompliance
with provision (1), on January 12, 1996, prior to complainant's September
22, 1996 request to have his complaint reinstated. We also find the
agency has failed to produce evidence either in the record or on appeal
that it had provided complainant with �Acting Group Manager details,
as available,� as called for in provision (4), in relevant part.
Accordingly, the Commission will direct the agency to conduct a
supplemental investigation in this matter.<5>
Having reviewed the entire record in this matter, the arguments on appeal,
including those not expressly addressed herein, and for the foregoing
reasons, the Commission declines to set aside the SA and direct the
reinstatement of complainant's underlying complaints. Instead, the
Commission directs the agency to conduct a supplemental investigation
and take other specified actions in compliance with the Commission's
ORDER set forth below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, as well
as take the following actions with the cooperation of complainant and
his representative if such cooperation is needed:
(1) the agency shall obtain and produce evidence as to whether and when
complainant alleged the agency breached provision (1) of the SA at issue,
and the specifics of that claim.
(2) If the agency finds complainant did not raise the issue of its
purported noncompliance with provision (1), the agency need not reach
a determination as to whether it complied with provision (1).
(3) If the agency finds complainant did raise the issue of breach
pertaining to provision (1), the agency shall address that issue on
the merits; in so doing, the agency shall ensure that all abbreviations
are fully spelled out; all terms, such as �span of control,� and �grade
structure changes,� are fully explained; and all persons who allegedly
received GM-512-13 Group Manager positions, or their equivalent,
in the EP/EO Division in the AKD in metro-Atlanta, and the dates and
circumstances of their promotions, are fully identified and clarified.
(4) The agency shall also address the merits of its alleged noncompliance
with provision (4). In so doing, the agency shall identify all dates
when complainant was purportedly assigned to the position of Acting Group
Manager; the length of time he spent in that position; the circumstances
under which he received the assignment and was then relieved of it;
and the post of duty where complainant served the assignment.
(5) The agency shall then issue a new final decision, with appeal rights
to the Commission, determining whether the agency was in compliance with
the SA as to provision (1), if necessary, and provision (4). The new final
decision shall cite to specific evidence of compliance, such as letters
of assignment or reassignment; Standard Form 50s and Standard Form 52s;
as well as statements, given under oath or affirmation, from persons,
including complainant, who have first-hand knowledge of this matter or
who have personally reviewed relevant documentation.
(6) All ORDERED agency actions, including the completion of the
supplemental investigation and the issuance of the new final decision,
shall be implemented within sixty (6O) calendar days of the date the
Commission's decision in this matter becomes final. True copies of
evidence of compliance, including all relevant documentation, as well
as the new final decision, must be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
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 (R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
May 22, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the 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.
2The SA at issue indicated it was disposing of matters raised under
agency case numbers 93-0021C, 93-0022C, and 93-2147.
3In finding the SA valid, the Commission took note of the fact that,
inter alia,�in January 1995, the decision was made to make Cincinnati,
Ohio[,] the centralized processing site for EP/EO determinations.� See
Miller II, supra, n.1. Further, �[i]n May 1995, the decision was made
that Baltimore, Maryland[,] would be the Key District for the Southeast
Region, not Atlanta.� Id.
4However, our finding should not be construed as accepting the agency's
argument as to collateral estoppel, a doctrine of issue preclusion in a
matter involving the same parties from a prior matter, since complainant
was not a party in the Miller cases, a fact the agency has conceded in
its response to complainant's appeal. See Buchhagen v. the Department
of Health and Human Services, EEOC Request No. 05940948 (June 3, 1996).
5The Commission notes that the agency had issued a final decision, dated
August 6, 1999, in this matter, approximately 20 months subsequent to the
perfecting of complainant's appeal. In light of this fact, and considering
our determination in this matter, the Commission deems the new final
decision to be a nullity having no force and effect in the present case.