0120092227
08-18-2009
Paul Snader, Complainant, v. Paul F. Prouty, Acting Administrator, General Services Administration, Agency.
Paul Snader,
Complainant,
v.
Paul F. Prouty,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120092227
Agency No. 08-CO-FAS-PMS-01
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated May 14, 2009, finding that it was in
compliance with the terms of the December 12, 2008 settlement agreement
into which the parties entered.1 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:
(1) [EO] agrees to coordinate a lateral transfer for [complainant]
from the Applied Engineering Division to Acquisition Applications Division
within 30 days of the execution of this agreement.
(3) The employee will be provided with office space which has lighting
that he requested as a reasonable accommodation.
On February 13 2009, complainant alleged that the agency was in breach
of the settlement agreement, and requested that the agency reinstate
his complaint. Specifically, complainant alleged that he had not been
transferred within 30 days of the execution of the agreement, and the
office space did not have the lighting he requested.
In its May 14, 2009 FAD, the agency concluded that it was not in breach
of the agreement. The agency stated that several meetings had been held
to work out the transfer, and the official date of the transfer was March
29, 2009. In addition, the agency stated that complainant acknowledged
that when he moved, the lighting he had requested had been installed,
and modified, and that complainant was working with appropriate personnel
to improve the lighting.
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, although the agency did not transfer complainant
within 30 days of the signing of the agreement, the agency was actively
in the process of arranging matters, and the record establishes that
the actual transfer occurred in March 2009. Thus, Commission finds
that the delay in transferring complainant was not ideal, the agency
in now in substantial compliance with the agreement. In addition, when
complainant was transferred, his office had the lighting he requested.
As such, the Commission finds that the agency is not currently in breach
of the agreement.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
August 18, 2009
__________________
Date
01 & 07 Procedural Case Code Sheet - INTERNAL CIRCULATION ONLY
Initials Date TO: Carlton M. Hadden, Director, Office of
Federal Operations Robbie Dix III, Acting Director, Appellate
Review Programs FROM: Mary-Jean Secoolish, Attorney 8/13/09
Mary Jean Secoolish, Supervisor Catherine McNamara,
Division Director Appeal Number(s) 0120092227 Agency Number(s)
08-CO-FAS-PMS-01 Hearing Number(s) Complainant(s): Paul Shader Agency:
GSA Decision: No Breach Statute(s) Alleged Basis(es) Alleged Issue(s)
Alleged (Where Discrimination Is
Found Only): (A) Basis(es) For Finding: (B) Issues In Finding
(Check All Applicable Codes) Procedural Codes ? 3K - Procedural
Decision
? 3N - Appeal Denied/Dismissed
? 3P - Adverse Inference
? 4H - OFO Affirmed FAD
? 3M - OFO Reversed and Remanded
? 4J - OFO Modified FAD
? 3L - OFO Vacated/Remanded ALL of
Agency's Merits Decision
? 4Q - Compliance required ? 3B - FAD Rescinded
? 3C - Duplicate Docket Number
? 3D - Withdrawal
? 3E - Complaint Settled
? 3G - Other Letter Closure
? 3R - Return to Agency for Consolidation
? 3S - Return to AJ for Consolidation
? 7N - Civil Action Filed Merits Settlement Codes ? 4A - Merits
decision
? 4R - OFO found settlement breach
? 4S - OFO found no settlement breach
? 4E - Agency found settlement breach
? 4F - Agency found no settlement breach
? 4H - OFO affirmed agency
? 4I - OFO reversed agency
? 4J - OFO modified agency (NOTE: if affirmed
In part and reversed in part, then (3L)
Code required if at least one issue is
remanded) ? 3L - OFO remanded PART of the agency's
merits decision (NOTE: If breach is
basis, use of 3L also requires 4I code)
? 3P - Adverse inference
? 5R - class complaint certified
? 5S - class complaint not certified (class requirements not met)
? 5T - class complaint not certified (procedural dismissal)
? 5U - class complaint certification remanded for additional discovery
? 4Q - Compliance required
Revised 6/22/05
ARP Companion Case Checklist
Complainant Agency Appeal/Request/Petition No. Paul Shader GSA 0120092227
OPEN CASES
Appeal No. IMS Status Related (Yes/No) Actions Taken
CLOSED CASES
Appeal No. IMS Status Related (Yes/No) Actions Taken
CLASS ACTION CASES
Appeal No. IMS Status Related (Yes/No) Actions Taken
Mary-Jean Secoolish 7/14/09
Attorney Date
1 The agency issued its FAD after complainant filed his appeal.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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