01A14757_r
11-06-2001
Preston E. Parker, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Preston E. Parker v. Department of the Navy
01A14757
November 6, 2001
.
Preston E. Parker,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A14757
Agency Nos. 97-00244-013, 98-00244-001
DECISION
Complainant timely appealed to this Commission from the agency's June 26,
2001 final decision, finding no breach of the February 17, 2000 settlement
agreement into which the parties entered. The settlement agreement
provided, in pertinent part, that the agency would, �within 120 days�:
(a) Reassign [complainant] to a position as a Supply Technician at his
same grade, step, and pay level. Upon the Complainant's reassignment,
[management] and [complainant] will meet with ATAC management as an
introduction. [Complainant] and [the manager] will hold a follow-up
meeting regarding communication expectations with ATAC management
approximately 30 days after the job begins.
Reinstate 50 hours of sick leave and 50 hours of annual leave.
In his undated claim of breach, complainant argued that the agency
breached the agreement by placing complainant in a warehouse position
instead of an office position and failing to reinstate all of
complainant's leave. Complainant also argued that the agency failed
to negotiate in good faith, because it failed to place complainant in
a position within his medical restrictions.
In its June 26, 2001 decision, the agency denied any breach of the
agreement. Concerning reassignment, the agency found no provision
in the settlement agreement requiring it to place complainant in an
�office� position instead of a �warehouse� job. The agency noted that
complainant never voiced any concerns over the reassignment during
the meetings mandated by the agreement. The agency also found that it
reimbursed complainant for all leave he was entitled to receive under
the agreement between March and July 2000.
On appeal, complainant argues that the agency was aware of his disability
(cerebral palsy), but refused to assign complainant to a position he
could successfully perform. The record includes a notice of proposed
removal, stating that the agency attempted to provide complainant with
reasonable accommodations to perform the essential functions of his new
position. The notice also states that there were no vacant positions
for reassignment within complainant's skills and abilities.
Any settlement agreement knowingly and voluntarily agreed to by the
parties, reached at any stage of the complaint process, is binding on both
parties. 29 C.F.R. � 1614.504(a). 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 parties' intent as
expressed in the contract, not some unexpressed intention, 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 generally relies 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).
The record reveals that the agency reassigned complainant to a �Supply
Technician� position, as required by the settlement. The agreement
made no provision for placing complainant in an �office� position.
The agency also provided complainant with the leave to which he was
entitled under the agreement.
The agency's failure or inability to accommodate complainant in his new
position, and eventual decision to remove complainant from employment,
involves subsequent agency action, not breach of the agreement.
If complainant wishes to pursue claims involving the agency's subsequent
action, he must initiate contact with an EEO Counselor within fifteen
(15) calendar days of receiving this decision. The Commission advises the
agency that if complainant seeks counseling within the fifteen day period
indicated above, it must consider the claims as having been raised with an
EEO Counselor on the date he alleged breach of the settlement agreement,
unless he previously contacted a counselor regarding these matters.
Cf. Qatsha v. Department of the Navy, EEOC Request No. 05970201 (January
16, 1998).
CONCLUSION
Accordingly, the agency's decision is 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
November 6, 2001
__________________
Date