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