0120061435
11-22-2005
Ned A. Tuffuo, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Ned A. Tuffuo,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120061435
Agency No. 02-00168-017
DECISION1
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated November 22, 2005, finding "an error"
had occurred with respect to its compliance with the terms of the January
7, 2004 settlement agreement into which the parties entered. See 29
C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
Upon review, the Commission finds that the agency breached the settlement
agreement and failed to provide an appropriate corrective action.
The settlement agreement provided, in pertinent part, that:
(2)(b) [the agency will] [p]rovide Complainant with priority consideration
for the positions of Environmental Engineer, GS-0819-12, Environmental
Scientist, GS-1301-12, and Environmental Specialist, GS-0028-12, employed
at the National Naval Medical Center (NNMC) for a period of eighteen (18)
months from the date Complainant returns the SF-52 to the Agency. There
may be an extension of the priority consideration for an additional six
(6) months if the following conditions are met:
(1) Complainant has not obtained employment; and
(2) None of the above-referenced positions have become vacant
during the initial 18-month period; and
(3) No vacancy announcement[s] for any of the above referenced
positions have been issued during the initial 18-month period.
The record reveals that the agency initiated a recruitment action for
an Environmental Scientist, GS-1301-12, position within the Facilities
Management Department approximately nine months after entering into the
agreement. The agency filled the position, effective November 14, 2004.
The record further reflects that the agency failed to notify complainant
of the recruitment action or provide him priority consideration.
On June 9, 2005, complainant alleged that the agency was in breach of
the agreement. He explained that, on June 7, 2005, he became aware that
a position for which he should have been given priority consideration
pursuant to the settlement agreement had been filled without providing
him the aforesaid benefit.
In its November 22, 2005 FAD, the agency concluded "an error" had
occurred with respect to provision (2)(b), but that the settlement
did not guarantee complainant a position. As corrective action,
the agency asserted that it would make sure to comply with the terms
of the settlement agreement, and that it would notify the servicing
personnel offices to "flag" all recruitment actions at the NNMC for
Environmental Engineer, GS- 0819-12, Environmental Scientist, GS-1301-12,
and Environmental Specialist, GS-0028-12, until January 30, 2006, the
date the terms of the settlement agreement expired.2
On appeal, complainant requests that the agency reinstate him to his
former position.
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).
In the instant case, the Commission finds that the agency failed to
comply with the terms of the settlement agreement when it initiated a
recruitment action for an Environmental Scientist, GS-1301-12, position
within the Facilities Management Department approximately nine months
after entering into the agreement, and failed to notify complainant and
provide him with priority consideration. We note that, in its decision,
dated November 22, 2005, the agency admitted that it failed to take action
in conformity with the requirements of the settlement agreement, yet it
provided no corrective action for its breach of the agreement. Indeed,
it failed to even extend the date by which the terms of the settlement
agreement would expire. As such, we determine that complainant was not
provided with the benefit for which he bargained. Complainant requests
that the agency reinstate him to his former position. The Commission,
however, finds that reinstatement is not the appropriate remedy because
placement into a vacancy was not the agreed upon term; rather, complainant
was to be given priority consideration for one of the aforesaid listed
positions. The appropriate corrective actions, therefore, cannot consist
of the reinstatement of complainant in his former position. Based on
the foregoing, we find that the agency is in breach of provision (2)(b)
of the settlement agreement, and that complainant may elect between two
corrective actions. Specifically, complainant may choose to have his
complaint reinstated, or he may request specific performance by the agency
which would entitle him to priority consideration for the positions of
Environmental Engineer, GS-0819-12, Environmental Scientist, GS-1301-12,
and Environmental Specialist, GS-0028-12, for a period of time to be
determined based on the date the subject position became vacant to
June 7, 2005, when he became aware that the position was filled.3 In
so doing, the date of the settlement agreement shall be extended for
approximately eight (8) months to account for the period during which
the agency failed to comply with its obligations under provision (2)(b)
of the settlement agreement.
With respect to provision (2)(d) of the agreement, which provides for
payment to complainant of a lump sum of $10,000, we find that complainant
is not required to return said proceeds for continued processing of his
complaint. In Basu v. Department of Agriculture, EEOC Appeal No. 01970460
(April 8, 1999), we held under similar circumstances that "return of the
[settlement proceeds] is not a prerequisite for continued processing
of the complaint." Id., (citing Oubre v. Entergy Operations, Inc., 522
U.S. 422 (1998)("...in equity, a person suing to rescind a contract,
as a rule, is not required to restore the consideration at the very
outset of the litigation.") and Hogue v. Southern Ry., 390 U.S. 516
(1968)). We conclude that complainant is not required to return the
settlement proceeds to the agency in the subject case as a condition of
continued processing of his complaint. Therefore, we direct the agency to
resume processing of complainant's complaint based upon his election, and
we remand this matter to the agency for compliance with the Order below.
ORDER
The agency is ORDERED to take the following action:
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall notify complainant of his option to: (1)
have his complaint reinstated, or (2) request that the agency extend
the date of the agreement for 18 months from the date he notifies
the agency of his wish to have the settlement agreement extended.
Pursuant thereto, the agency shall further notify complainant that he
has fifteen (15) calendar days from the date of receipt of the agency's
notice within which to notify the agency of his election. In the event
that complainant elects to have his complaint reinstated, the agency
shall reinstate complainant's complaint within thirty (30) days of
receiving notification from complainant of his election, and resume
processing of his complaint from the point where processing ceased. As
a precondition to the reinstatement of his complaint, complainant shall
not be required to return any sum paid by the agency pursuant to the
agreement or to forego any other benefit he might have received. In the
event that complainant elects to specific performance by the agency
which would entitle him to priority consideration for the positions of
Environmental Engineer, GS-0819-12, Environmental Scientist, GS-1301-12,
and Environmental Specialist, GS-0028-12, for a period of time to be
determined based on the date the subject position became available
to June 7, 2005, when he became aware that the position was filled,
the agency shall provide complainant with the necessary documentation
to establish the extended date of the executed agreement within thirty
(30) days of receiving notification from complainant of his election.
To accomplish this, the agency shall ensure that it complies with all
the terms of the settlement agreement, and shall notify the servicing
personnel offices to "flag" all recruitment actions at the NNMC for
Environmental Engineer, GS- 0819-12, Environmental Scientist, GS-1301-12,
and Environmental Specialist, GS-0028-12, until the date the terms of
the settlement agreement expire.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the above-stated action has been implemented.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
__1-7-2008________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 Pursuant to 29 C.F.R. � 1614.107(a)(1), the agency dismissed
complainant's claim regarding the disparate treatment he experienced
when he was issued a notice of violation as compared to that of the
individual selected. Complainant does not raise that claim herein,
and the Commission will exercise its discretion and focus only on
the issues specifically raised on appeal. Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-10 (November
9, 1999).
3 We note that provision (2)(b) required the agency to "[p]rovide
Complainant with priority consideration for the positions of Environmental
Engineer, GS-0819-12, Environmental Scientist, GS-1301-12, and
Environmental Specialist, GS-0028-12, employed at the National Naval
Medical Center (NNMC) for a period of eighteen (18) months from the
date Complainant returns the SF-52 to the Agency." (emphasis added)
In allowing for the tolling of the agreement as stated, the Commission
is providing complainant with the opportunity to obtain the consideration
for which he bargained when he entered into the agreement on the January
7, 2004.
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0120061435
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120061435