Louis S. Welker, Complainant,v.Mike Johanns, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionSep 5, 2007
0120072138 (E.E.O.C. Sep. 5, 2007)

0120072138

09-05-2007

Louis S. Welker, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.


Louis S. Welker,

Complainant,

v.

Mike Johanns,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 0120072138

Agency No. 990607

DECISION

JURISDICTION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated February 16, 2007, finding that it was

in compliance with the terms of the July 6, 2001 settlement agreement

into which the parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. �

1614.504(b); and 29 C.F.R. � 1614.405.

The settlement agreement (Agreement) provided, in pertinent part, that

the agency would:

(1) Guarantee the Complainant's current 801 Series GS-15

classification based upon his current qualifications, to the extent

allowed under existing Agency power and authority.

By letter to the agency dated April 16, 2005, complainant alleged that

the agency was in breach of the Agreement, and requested that the agency

specifically implement its terms. Specifically, complainant alleged

that the agency violated the terms of the Agreement by conducting a

phased reorganization in the facilities division. Complainant contends

that this reorganization "will reduce my GS-15 management status and

span of control by pushing my Branch reporting downward into a second

level tier under the control of a GS-14, Facilities Division, Deputy

Director Position who will assume responsibility for the Engineering and

Contracting functions." Complainant further maintains that the purpose

of the above clause in the Agreement "was to specifically protect me

from future Agency reorganizations, reassignments and the loss of staff

. . . , status, and management span of control."

In its February 16, 2007 FAD, the agency concluded that it had not

breached the Agreement. Specifically, the agency found that the language

of the Agreement merely stipulated that the agency would "guarantee

the Complainant's current 801 Series GS-15 classification based upon

his current qualifications" and that the record showed that complainant

was currently in the 801 series at the GS-15 level. The agency further

noted that the Agreement made no guarantee that complainant's series

and grade would remain unchanged forever.

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 O 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 the agency properly determined that

there was no breach of the Agreement. We note initially that it is

unclear from the record whether the reorganization has actually taken

place or whether complainant is alleging that a future reorganization

would result in a breach of the Agreement. In any event we note that that

the Agreement merely promises to keep complainant in the 801 series at the

GS-15 level, and complainant makes no allegation that this was not done.

The Agreement, however, makes no mention of preserving complainant's

"GS-15 management status and span of control" or of protecting complainant

"from future Agency reorganizations, reassignments and the loss of staff

. . . , status, and management span of control."

Furthermore, as noted in the FAD, the Agreement does not specify that

the job classification described therein was to be permanent, or was to

last for any specific length of time. Here, complainant performed under

the Agreement's job classification for almost four years, and perhaps

longer1. The Commission has held that where an individual bargains for

a position or classification without any specific terms as to the length

of service, it would be improper to interpret the reasonable intentions

of the parties to include that the exact position or classification

would remain unchanged ad infinitum. See Holley v. Department of

Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Papac

v. Department of Veterans Affairs, EEOC Request No. 05910808 (December

12, 1991). More specifically, in Hamilton V. U.S. Postal Service, EEOC

Appeal No. 01A2268 (July 5, 2002), the Commission found that the agency

did not breach a settlement agreement promising a Tour II schedule when

after five months, operational needs necessitated that complainant be

reassigned to Tour III. Therefore, based on the foregoing, we find that

it was not unreasonable for the agency to plan or conduct the phased

reorganization, and that the reorganization does not constitute a breach

of the Agreement.

Complainant also raised the issue of denial of career enhancing

opportunities. The Agreement is silent on such matters and hence such

denials do not constitute a breach. If complainant wishes to file a

new complaint alleging denial of career enhancing opportunities, as

well as other discriminatory acts since the signing of the Agreement,

complainant should contact an EEO Counselor.

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

September 5, 2007

__________________

Date

1 There is nothing in the record to suggest that complainant is not

still under the same classification.

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0120072138

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

4

0120072138