Lester M. Frank, Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJun 18, 2010
0120093725 (E.E.O.C. Jun. 18, 2010)

0120093725

06-18-2010

Lester M. Frank, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.


Lester M. Frank,

Complainant,

v.

John M. McHugh,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120093725

Agency No. ACBW9508F0500

DECISION

Complainant filed a timely appeal with this Commission concerning

her claim that the Agency was not in compliance with the terms of the

December 6, 1996 Settlement Agreement (settlement agreement) into which

the parties entered. The Commission REVERSES the agency's decision.

BACKGROUND

The settlement agreement provided, in pertinent part, that:

(3) In exchange for the promises of the Complainant contained in this

agreement, the Agency agrees to take the following action:

a. The agency agrees that if DFAS transfers one or more manpower

authorizations (spaces) to WSMR [White Sands Missile Range]-TECOM in

the next phase of consolidation, the complainant will be offered any of

those positions at his current or lower grade for which he meets basic

qualifications under OPM guidance.

b. If complainant is offered and accepts a position at a lower grade

than his current grade, the action will be a voluntary change to lower

grade, and his current pay will not be retained unless it can be fixed

at a step of the new position.

By letter to the agency dated November 12, 1997, 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 offer him a position in the "next

phase of consolidation" in accordance with the terms of the settlement

agreement. Complainant noted that the Agency offered him a GS-503-07

Payroll Service Representative position on October 9, 2007. However,

Complainant claimed that this position was not part of the "next phase

of consolidation" as specified in the agreement. Complainant stated that

in April 1993, Defense Finance and Accounting Service (DFAS) capitalized

(transferred ownership of) the Accounting and Finance Office at WSMR.

He stated that 18 months later DFAS announced that 325 offices were

being consolidated into approximately 25 offices in the next five

years. Complainant noted that thereafter DFAS issued periodic notice

of offices to be consolidated. Complainant explained that WSMR was

given a consolidation date of June 1, 1998. Complainant stated that

the Managerial Accounting Division at WSMR has received 15 accounting

positions (of which he states several were in his job series and grade).

Complainant alleged that these 15 accounting positions would stay in place

until the consolidation when DFAS leaves in June 1998. Complainant claims

that the settlement agreement applies to one of these 15 positions.

On March 30, 1998, Complainant wrote to the Commission's Office of

Federal Operations (OFO) stating that he had notified the Agency of his

belief that the Agency had not complied with the terms of the December 6,

1996 settlement agreement over three months ago. Complainant stated that

since notifying the Agency of his breach claim he has not received further

correspondence from the Agency. Complainant requested the Commission's

assistance in enforcing the settlement agreement.

In its June 15, 1998 final determination, the Agency concluded that it was

not in compliance with the terms of the settlement agreement. The Agency

determined that the October 1997 offer to a GS-05 Payroll position does

not comply with the terms of the agreement because the position offered

was covered by the first phase of consolidation. The Agency stated that

it would specifically implement the terms of the agreement.

Thereafter, in a June 23, 1998 letter, Complainant informed OFO that

the Agency has agreed that it "did not act in good faith pertaining to

[his] negotiated settlement agreement." Complainant stated that the

Agency has ordered WSMR to enforce the agreement.

Subsequently, Complainant retired from his position of Systems Accountant,

GS-12, step 8, at DFAS at WSMR effective June 30, 1998. Complainant

received a separation incentive of $25,000.00.

On January 20, 1999, Complainant wrote to OFO requesting that as a result

of the Agency's breach his complaint of discrimination be reinstated

for further processing. In a supplemental appeal statement dated March

17, 1999, Complainant requested that instead of having his complaint

reinstated, he wanted the settlement agreement specifically enforced.

Specifically, Complainant requested the Agency offer him a position in

accordance with the terms of the agreement.

CONTENTIONS ON APPEAL

On appeal, Complainant states that he had been working as an Accountant

GS-12 Division Chief in the DFAS Office at the agency's WSMR location.

Complainant stated that prior to the settlement agreement, the Agency

consolidated its finance and accounting operations. Complainant stated

that pursuant to the consolidation, DFAS would cease operations and

move out of the area. Complainant stated that the first phase of

consolidation, known as capitalization, occurred in May 1993, three

years prior to the agreement. Complainant stated that the next phase

of consolidation was a process whereby positions reverted back to WSMR.

He stated this phase occurred in January 1998, and included a statement

that all finance and accounting positions, including complainant's

position would be abolished by June 1998. Complainant stated that

prior to his retirement in June 1998, he learned that a co-worker,

Person A, was placed in a GS-12 position as part of consolidation.

Complainant also stated that there were other positions that should have

been offered to him as part of consolidation. Complainant stated that

had he received an offer from the Agency for one of these positions he

would not have retired. Complainant requests retroactive placement into

a GS-12 position at WSMR, with back pay, all step and grade increases,

and all other benefits to which he would have been entitled had the

Agency complied with it.

In response to Complainant's appeal, the Agency argues that his appeal

was untimely and should be dismissed. The Agency stated that it issued

its final determination on complainant's breach allegation on June 15,

1998. The Agency claimed that, assuming five days for mail delivery of

the decision, Complainant had until July 20, 1998, to file his appeal.

The Agency stated that since Complainant did not file his appeal until

January 20, 1999, his appeal was untimely.

Additionally, the Agency argues that complainant failed to diligently

pursue his claim. The Agency states that after Complainant filed his

supplemental appeal statement with OFO on March 17, 1999, he did not

contact OFO again until November 22, 2005, which it states was six

years and eight months after his previous contact. The Agency also

notes that Complainant then waited another three years and four months,

from November 2005, until March 13, 2009, until contacting OFO again.

Thus, the Agency argues that Complainant failed to diligently pursue his

claim and argues that as a result of laches, his appeal should be barred.

Finally, the Agency argues that Complainant's complaint is moot due

to his retirement from the Agency. The Agency argues that it is not

practical to provide an offer of a position to Complainant because he is

no longer employed there. The Agency states that Complainant's retirement

from the Agency divested him of any viable interest and the agency of

its obligation, per the settlement agreement, to offer him a position

if and when such a position ever became available. Furthermore, the

Agency states that reorganization (consolidation) of DFAS offices also

makes compliance impossible. The Agency explains that a DFAS office no

longer exists at WSMR.

ANALYSIS AND FINDINGS

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. Dep't 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. U.S. 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).

As an initial matter, we find that Complainant's appeal is now properly

before us. EEOC Regulation 29 C.F.R. �1614.504(b) provides in pertinent

part, that, "complainant may file such an appeal 35 days after he

or she has served the agency with the allegations of noncompliance

. . ." The record reflects that Complainant notified the Agency of

his breach claim on November 12, 1997. After more than 35 days passed,

Complainant wrote to the Commission on March 30, 1998, indicating that

despite notifying the Agency of his belief that it had not complied

with the terms of the December 6, 1996 settlement agreement, he has

not yet received a response from the agency. Complainant requested

the Commission's assistance in enforcing the settlement agreement.

Thus, we find Complainant's March 30, 1998 appeal is properly before

us.1 Moreover, we reject the Agency's contention that Complainant's

appeal should be dismissed due to his failure to diligently pursue

the matter.

Next, we address the Agency's argument that Complainant's complaint

is moot. The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides

for the dismissal of a complaint when the issues raised therein are moot.

To determine whether the issues raised in complainant's complaint are

moot, the factfinder must ascertain whether: (1) it can be said with

assurance that there is no reasonable expectation that the alleged

violation will recur; and (2) interim relief or events have completely

and irrevocably eradicated the effects of the alleged discrimination.

See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo

v. Dep't of the Navy, EEOC Request No. 05970343 (July 10, 1998).

When such circumstances exist, no relief is available and no need for a

determination of the rights of the parties is presented. The underlying

complaint is not moot because of Complainant's retirement and interim

events. In correspondence on appeal, Complainant's attorney asks for

the complaint to be reinstated so evidence of damages may be presented.

There still exists the possibility that if Complainant were to prevail

in his underlying complaint, that he would be entitled to compensatory

damages. Therefore, the underlying complaint is not moot.

In the present case, the Agency acknowledged that its October 1997 offer

was not in compliance with the terms of the settlement agreement.

Apart from the October 1997 offer, the Agency does not claim to

have made any additional offers in compliance with the agreement.

The record indicates that the reorganization (consolidation) of DFAS

offices makes compliance impossible. Specifically, the record reveals

that a DFAS office no longer exists at WSMR. Thus, in this case we

find it appropriate to reinstate Complainant's complaint for processing.

The Agency shall reinstate the settled complaint for processing.

CONCLUSION

The Agency's final determination is REVERSED and the underlying complaint

is REMANDED to the Agency for reinstatement in accordance with the

Order herein.

ORDER (E0408)

The Agency is ordered to process the remanded claims in accordance with

29 C.F.R. �1614.108. The Agency shall acknowledge to Complainant that it

has received the remanded claims within thirty (30) calendar days of the

date this decision becomes final. The Agency shall issue to Complainant

a copy of the investigative file and also shall notify Complainant of

the appropriate rights within one hundred fifty (150) calendar days of

the date this decision becomes final, unless the matter is otherwise

resolved prior to that time. If Complainant requests a final decision

without a hearing, the Agency shall issue a final decision within sixty

(60) days of receipt of Complainant's request.

A copy of the Agency's letter of acknowledgment to Complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)

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 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)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (R0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

June 18, 2010

__________________

Date

1 The record reveals that Complainant provided copies of mailings sent

to OFO in 1998 and 1999, alleging that the Agency breached the subject

settlement agreement, and subsequently followed up with periodic status

inquires regarding the matter. However, an appeal was not docketed

regarding Complainant's breach claim until September 2009.

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0120093725

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120093725