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.
??
??
??
??
2
0120093725
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120093725