Lyle W. Allard, Complainant,v.Gale A. Norton, Secretary, Department of the Interior, (Fish and Wildlife Service), Agency.

Equal Employment Opportunity CommissionJun 12, 2002
01A21544_r (E.E.O.C. Jun. 12, 2002)

01A21544_r

06-12-2002

Lyle W. Allard, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, (Fish and Wildlife Service), Agency.


Lyle W. Allard v. Department of the Interior

01A21544

June 12, 2003

.

Lyle W. Allard,

Complainant,

v.

Gale A. Norton,

Secretary,

Department of the Interior,

(Fish and Wildlife Service),

Agency.

Appeal No. 01A21544

DECISION

Complainant filed an appeal with this Commission regarding an alleged

breach of an August 17, 2001 settlement agreement reached between the

parties. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b): and 29

C.F.R. � 1614.405.

The settlement agreement provided, in pertinent part, that:

(1d) In accordance with 5 CRF 353-Subpart C-Compensable Injury,

provide the Complainant the entitlement for placement in another

position Agency-wide for which qualified that will provide the

Complainant with the same status, and pay, or the nearest approximation

thereof, consistent with the circumstances of complainant's case. This

entitlement will be in effect until February 2, 2002. After February 2,

2002, the Complainant will be treated as a handicapped individual under

the Rehabilitation Act of 1973, as amended. If the Complainant fully

recovers after a year, he will be entitled to priority consideration,

agency wide, for restoration to the position he left or an equivalent

one provided he applies for reappointment within 30 days of ceasation

[sic] of compensation.

By letter to the agency dated December 6, 2001, complainant alleged that

the agency breached the settlement agreement. Specifically, complainant

alleged that the agency failed to provide him with agency-wide entitlement

to a position promised in the agreement. Complainant maintained that the

only positions for which the Department of the Interior even considered

placing complainant were those within Region 6 of the U.S. Fish

and Wildlife Service, instead of agency-wide positions. On appeal,

complainant requests placement into a position, backpay with interest,

compensatory damages, and attorney's fees.

The agency responded to complainant's breach claim in a letter dated

March 1, 2002, subsequent to complainant's appeal to the Commission.

The agency acknowledged that it had breached the agreement by not

providing complainant with an agency-wide entitlement to a position.

The agency concluded that in order to remedy the breach, complainant

will be provided agency-wide entitlement to a position within 30 days

after complainant's receipt of its letter. The agency also stated that

complainant would be placed into the position for the same length of

time reflected in provision (1d).

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).

The record reveals that complainant was employed with the agency from

1990 until 2000. His last position with the agency was as a Fishery

Biologist, GS-482-09 in Jackson, Wyoming. In April 19, 2000 and

September 22, 2000, complainant suffered severe on-the-job injuries.

In September 2000, the agency informed complainant that he could not

work without a medical release, which complainant failed to obtain.

In the instant case, the agency acknowledges that it breached the

agreement by not providing complainant the promised entitlement to

another position comparable to his previous position with the agency.

On appeal, there is no evidence in the record that the agency has

subsequently provided complainant with the promised placement. Likewise,

there is no evidence in the record that complainant has fully recovered

from his injuries to the extent that he is eligible for reappointment

to his prior position under the terms of the agreement. Consequently,

we find that the agency breached the agreement by not placing complainant

into a position for which he is qualified. Moreover, we determine that

the terms of the agreement entitle complainant to agency-wide placement,

not only positions with the U.S. Fish and Wildlife Service. We also

note that under the settlement, complainant is entitled to a position

from August 17, 2001 until February 2, 2002, a total of 169 calendar

days. In order to achieve a benefit comparable to that contemplated in

the agreement, we determine that complainant should now be placed into

an agency position for which he is qualified for 169 calendar days.

Finally, we note that on appeal, complainant also requests back pay,

compensatory damages, and attorney's fees as remedies for the agency's

breach. However, absent explicit provisions within a settlement

agreement providing for these remedies, the Commission is restricted to

remedying a breach by ordering reinstatement of the underlying complaint

or enforcement of the agreement's terms. See 29 C.F.R. 1614.504(c);

See Kessler v. United States Postal Service, EEOC Request No. 05970446

(February 26, 1999) and Martin v. Department of Defense, EEOC Request

No. 05940745 (August 24, 1995) (finding compensatory damages unavailable

for findings of settlement breach); Buckhannon Bd. & Care Home,

Inc. v. West Virginia Dept. of Health and Human Services, 532 U.S. 598 (

2001)(only parties who obtain judgments on the merits of their claim or

court-ordered consent decrees in their favor can receive attorney's fees).

In this matter, the settlement agreement does not provide for back pay,

attorney's fees, or compensatory damages.<1> We therefore determine that

specific performance of the agreement's terms is the appropriate remedy

for the agency's breach.

Accordingly, the Commission finds breach of the settlement agreement

and directs the agency to undertake remedial action in accordance with

the ORDER below.

ORDER

To the extent that it has not already done so, the agency is ordered to

take the following remedial actions to specifically implement provision

(1d) of the settlement agreement:

Within forty-five (45) calendar days, the agency shall provide complainant

with placement into another agency position for at least 169 calendar

days for which he is qualified that will provide him with the same status

and pay as his previous position. In this matter, �same pay� means that

complainant will be paid the same amount that he would make currently if

he had remained in his previous position of Fishery Biologist, GS-482-09.

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 (K0501)

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 (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

_June 12, 2002_______________

Date

1We note that although provision (1e) provides for attorney's fees related

to complainant's underlying EEO complaint and settlement negotiations,

it does not provide for attorney's fees incurred subsequent to the

execution of the agreement.