01985092
02-28-2000
Mike Harris, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Mike Harris, )
Complainant, )
)
v. ) Appeal No. 01985092
) Agency Nos. 94-67004-018 & 97-67004-002
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
Complainant timely appealed the agency's final decision not to reinstate
his complaints of unlawful employment discrimination that the parties had
settled.<1> See 64 Fed. Reg. 37,644, 37,659-37,660 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. �� 1614.402(a), 1614.504).
The record indicates that complainant, an Electrical Equipment Worker,
WG-7, filed two formal complaints dated July 5, 1994, and October
23, 1996, concerning his performance rating and working conditions.
On February 20, 1997, the parties entered into a settlement agreement,
which provided, in pertinent part, that:
The agency would reassign complainant to Supply Technician, GS-2005-05,
Position Description for overhire position will be created to handle
supply functions, in TAVSC Branch of Base Support Division. The agency
would also give complainant pay retention of WG-07/05 at the GS-05/10
level for an indefinite period.
By letter dated May 14, 1998, complainant alleged that the agency breached
the settlement agreement. In the letter, complainant did not identify
any specific incidents of breach.
In its final decision, the agency stated that complainant was employed
as a Supply Technician, GS-2005-05, with pay retention of WG-07/05 at
the GS-05/10 level under the settlement agreement. The agency noted
that thereafter, on February 3, 1998, Installations and Logistics was
established with the result of the Base Support Division functions
being realigned, and all personnel under the Base Support Division were
realigned into the new organization. The agency also noted that upon the
retirement of an individual in a permanent hardline billet which was the
same or like complainant's position description, management determined
that both positions were not required and the overhire position was
abolished. The agency indicated that complainant was, then, assigned
to the permanent hardline billet on March 27, 1998. The agency stated
that complainant remained a Supply Technician, GS-2005-05, with pay
retention of WG-07/05 at the GS-05/10 level. The agency determined that
since the settlement agreement did not address any future actions based
on the needs of management to realign, abolish positions or reassign
complainant, as long as he maintained the same series and pay retention,
it fully complied with the settlement agreement.
On appeal, complainant contends that the agency breached the settlement
agreement since he is currently being reassigned to a facility within his
branch without considering his prior experience. Complainant indicates
that this new job is totally different from his last assignment under the
settlement agreement. Complainant also indicates that during settlement,
the agency agreed that his new assignment would be a permanent billet
and a hardline billet, and he would not move again, and it would not
require an extensive skill in typing.
EEOC Regulation 29 C.F.R. � 1614.504 provides that if the complainant
believes that the agency failed to comply with the terms of a settlement
agreement, the complainant should notify the Director of Equal Employment
Opportunity, in writing, of the alleged noncompliance with the settlement
agreement, within thirty (30) days of when the complainant knew or should
have known of the alleged noncompliance. The complainant may request that
the terms of the settlement agreement be specifically implemented or,
alternatively, that the complaint be reinstated for further processing
from the point processing ceased.
The agency shall resolve the matter and respond to the complainant,
in writing. If the agency has not responded to the complainant, in
writing, or if the complainant is not satisfied with the agency's attempt
to resolve the matter, the complainant may appeal to the Commission for
a determination as to whether the agency has complied with the terms of
the settlement agreement or final decision.
The Commission has held that settlement agreements are contracts between
the complainant and the agency and it is the intent of the parties
as expressed in the contract, and not some unexpressed intention, that
controls the contract's construction. Eggleston v. Department of Veterans
Affairs, EEOC Request No. 05900795 (August 23, 1990). In addition, the
Commission generally follows the rule that if a 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 v. Building Engineering Services,
730 F.2d 377 (5th Cir. 1984). The Commission has followed this rule
when interpreting settlement agreements. The Commission's policy in
this regard is based on the premise that the face of the agreement best
reflects the understanding of the parties.
The record indicates that complainant was reassigned to the Supply
Technician, GS-2005-05, Position Description for overhire position with
pay retention of WG-07/05 at the GS-05/10 level pursuant to the February
20, 1997 settlement agreement. Complainant, however, contends that the
agency breached the subject agreement, when he was, thereafter, reassigned
to another facility within his branch on or around March 27, 1998, and
this new position requires an extensive skill in typing. Upon review,
we find that the settlement agreement did not provide that complainant
would be in the subject position, i.e., the overhire position, forever
nor did it provide that he would not be reassigned to any other facility
in the future. The Commission has held that a settlement agreement that
places a complainant into a specific position, without defining the length
of service or other elements of the employment relationship, will not
be interpreted to require the agency to employ the complainant in the
identical job specified forever. See Parker v. Department of Defense,
EEOC Request No. 05910576 (August 29, 1991); Papac v. Department of
Veterans Affairs, EEOC Request No. 05910808 (December 12, 1991); Elliott
v. United States Postal Service, EEOC Appeal No. 01970474 (August 27,
1997). Upon review, we find that complainant was reassigned to Supply
Technician, GS-2005-05, Position Description for overhire position with
pay retention of WG-07/05 at the GS-05/10 level pursuant to the settlement
agreement, and his subsequent reassignment to another facility, i.e.,
the permanent hardline billet, within the same branch did not constitute
a settlement breach. In addition, we find that the settlement agreement
did not provide that complainant would not be required to do extensive
typing in his position. Thus, we find that the subject matter is beyond
the scope of the settlement agreement. Based on the foregoing, we find
that the agency did not breach the settlement agreement, and its final
decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 28, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.