01990608
12-14-1999
Lewis F. Glover, Jr., Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Lewis F. Glover, Jr., )
Complainant, )
)
v. ) Appeal No. 01990608
) Agency No. DON 98-60169-001
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
On October 28, 1998, complainant filed a timely appeal with this
Commission from the agency's determination that it was in compliance
with the terms of the March 17, 1998 settlement agreement between the
parties.<1> See 64 Fed. Reg. 37,644, 37,659, 37,660 (1999)(to be
codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.402)); 29 C.F.R. � 1614.504(b); EEOC Order No. 960, as amended.
The settlement agreement provided, in pertinent part, that the agency
would:
request a third party opinion from the Civilian Personnel management
Service Field Advisory Services Classification Team, of the GS-2101-11
Supervisory Transportation Specialist position. The FAS Classification
Team will conduct an on-site audit, with expenses paid by the Activity.
The results of the audit will be considered binding with management
retaining the right as final authority on actual duties performed.
By letter to the agency dated August 13, 1998, 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 properly conduct a desk audit of his
position. Complainant alleges that the individual performing the audit
did not spend adequate time discussing the position and complainant's
duties relative to the position. In his statement on appeal complainant
argues that the individual performing the desk audit was someone other
than his immediate supervisor, who had no knowledge of his duties.
Complainant also argues that the agency failed to comply with the March
17,1998 agreement when it failed to solicit his input as to the duties
he performs.
In response, the agency argues that it complied in full with the terms
of the settlement agreement. Specifically, the agency indicated that
the agreement required it to provide a Field Advisory Team to perform an
audit of complainant's position. The agency argues that an independent
audit was performed by a third party Field Advisory Team as specified in
the agreement. The agency argues further that rather than reinstate his
EEO complaint, complainant should raise his concerns with the Advisory
Team that performed the audit.
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
referred to as 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, the agreement dictated an affirmative agency
obligation to request that the Civilian Personnel Management Service
Field Advisory Services Classification Team perform an on-site audit of
complainant's position. The agreement also provided that the �results
of the audit will be considered binding with management retaining the
right as final authority on actual duties performed.� Complainant
alleges that he was not consulted for comments regarding the duties he
performs, and complains generally about the manner in which the entire
audit was handled.
Upon review, the Commission finds that the agency properly concluded that
it did not breach the terms of the settlement agreement. Specifically,
we find that the agency carried out its obligations under the settlement
agreement; an independent audit was conducted pursuant to the agreement's
terms. Contrary to complainant's contentions, his input concerning the
proper classification of his position was not required pursuant to the
terms of the agreement. Moreover, the agreement does not contain any
stipulation that the Team performing the audit had to have been one of
complainant's supervisors. To the extent that complainant expected to
have some input regarding the classification of his position and that
someone who had supervised complainant be on the Team performing the
audit, these expectations should have been reduced to writing as part
of the settlement agreement. See Jenkins - Nye v. General Services
Administration, EEOC Appeal No. 01851903 (March 7, 1987). Instead,
the agreement merely provided that the Team would conduct a third
party on-site audit with expenses paid by the agency. This provision
was completed. We find that the agency did not breach the terms of the
settlement agreement. Accordingly, the Commission AFFIRMS the agency's
decision finding that it did not breach the settlement agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
Dec. 14, 1999
____________________________
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 Equal Employment Assistant
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.