Melvin C. Mack, Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 24, 2002
01A13935_r (E.E.O.C. Sep. 24, 2002)

01A13935_r

09-24-2002

Melvin C. Mack, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.


Melvin C. Mack v. Department of the Army

01A13935

September 24, 2002

.

Melvin C. Mack,

Complainant,

v.

Thomas E. White,

Secretary,

Department of the Army,

Agency.

Appeal No. 01A13935

Agency No. BGASFO9910J0630

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated May 2, 2001, finding that it was in

compliance with the terms of a May 10, 2000 settlement agreement. 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:

4a. The agency agrees to install an information board in the maintenance

break room that will include work schedules, policy changes, meeting

notices, job information, memos from management and status information

regarding the upcoming remodeling of the maintenance building.

The complainant agrees to check the board each day he comes to work for

any new information that has been placed on the board.

By letter to the agency postmarked March 17, 2001, complainant then

alleged that the agency breached the settlement agreement. Specifically,

complainant alleged that the agency failed to post job information in

the nature of an agency vacancy announcement concerning the position

of Facility Management Specialist /Assistant Superintendent and Greens

Manager for the Golf Course, as seemingly required by paragraph 4(a)

above. Complainant claimed that the agency instead simply awarded

the position to another party through its mandatory referral program,

a program in which complainant was not registered which precluded his

ability to apply for the position.

In its May 2, 2001 FAD, the agency, however concluded that management

had carried out terms of the settlement agreement, including those of

paragraph 4(a) above.

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, complainant argues that the term �job information�

identified in provision 4(a) was meant to include vacancy announcements

about particular full-time jobs for which complainant could apply.

In response to complainant's appeal, the agency argues that the intent

of the parties was not to include particular job vacancy announcements

within the term �job information,� but only information about those work

assignments specific to the maintenance branch employees: i.e., work

schedules; policy changes; meeting notices; memoranda from management;

and information concerning the remodeling of a workspace, but not job

vacancy announcements, since they were not specific to the employees of

the maintenance branch. The agency argues that job vacancy announcements

were routinely posted on boards reserved for that purpose for all agency

employees to scrutinize.

Upon our review of the record, we determine that provision 4(a) contained

no express agency obligation to post specific vacancy announcements on

an information board in the maintenance break room. We find instead

that a reasonable interpretation of provision 4(a) reflects that the

information board would contain the type of information identified by

the agency on appeal. To the extent that complainant wanted to have the

term �job information� encompass specific agency vacancy announcements,

such an interpretation should have been reduced to writing in the

settlement agreement.

Accordingly, the agency's decision of May 2, 2001, finding that it had

fully complied with the terms of the settlement agreement is hereby

AFFIRMED.

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 24 ,2002

__________________

Date