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.