Rodger A. Brothers, Complainant,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionAug 6, 2009
0120091443 (E.E.O.C. Aug. 6, 2009)

0120091443

08-06-2009

Rodger A. Brothers, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.


Rodger A. Brothers,

Complainant,

v.

Pete Geren,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120091443

Agency No. ARANAD08FEB00335

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated February 10, 2009, finding that it

was in compliance with the terms of the December 11, 2008 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.

The settlement agreement provided, in pertinent part, that:

(1) Complainant will be reassigned from his 2nd shift position

as a WG-2604-08 Electronics Worker in cost center 52D70, Cable Repair

Branch, Armament System Division, Directorate of Production, AMAD, to

a 2nd shift position as a WG-2604-08 Electronics Worker in cost center

52DD0, Laser/Thermal Electronics Repair Branch, Armament System Division,

Directorate of Production. Management will initiate the required actions

to accomplish this reassignment within 30 calendar day of the execution

of this agreement.

(2) Complainant will receive assistance in updating and ensuring the

accuracy of his resume from Mr. D.W.... This assistance will be based

upon the materials provided voluntary attendees of a recently conducted

training session involving the Department of the Army's Resumix system.

Complainant acknowledges that he is responsible for his resume being up

to date and accurate.

(3) Complainant further understands and agrees that any other ANAD

employee who requests and receives assistance from Mr. [D.W.] on updating

and ensuring the accuracy of their resume will receive substantially

the same assistance as provided Complainant.

By letter to the agency dated January 8, 2009, complainant alleged

that the agency breached the settlement agreement. Specifically,

he alleged that his cost center had not been changed, and while he

received assistance with his resume, it was not in good faith as it

was only for 15 minutes, only minor changes were made, and others were

assisted multiple times for longer periods and some had their resumes

completely rewritten.

In its February 10, 2009 FAD, the agency concluded that it did not breach

the settlement agreement. The FAD found that the agency reassigned

complainant, as agreed, and assisted him with his resume, as agreed.

It also found that Mr. D.W. assisted complainant a second time with his

resume on January 17, 2009.

The record contains a notification of personnel action and computer

printout verifying that effective December 21, 2008, complainant was

reassigned from the position of Electronics Worker, WG-2604-08, in the

Directorate of Production, Armament Systems Division, Cable Repair Branch,

Cost Center 52D7, to the position of Electronics Worker, WG-2604-08, in

the Directorate of Production, Armament Systems Division, Lazer/Thermal

Electrical Branch, Cost Center 52DD.1

The record also contains an affidavit by Mr. D.W. that he assisted

complainant with his resume on December 11, 2008, reviewing it and

suggesting changes. He wrote that the time he spent assisting each

employee was based on each employee's circumstances, and he did not put

a time limit on complainant or any other employee. He explained that he

went over the same things with each employee, providing specificity as

to the things he reviewed. He indicated that he asked all the employees,

including complainant, if they had any military experience in a Military

Occupational Specialty (MOS) that included any of the position description

skills for which they expressed an interest in applying. If so,

they would get documentation about that MOS and ensure the employee's

resume reflected the pertinent skills. He wrote that some employees

did provide the above documentation, so he helped them more than once.

He wrote that complainant, with the same opportunity he gave others,

had no military MOS job skills experience and no documented civilian

job experience that included any of the position description skills for

which he expressed an interest in applying. Mr. D.W. affirmed that he did

not rewrite the resume for any employee, and if it was rewritten at all,

it would have been done by the individual employee. He indicated that

he reviewed complainant's resume with him again on January 17, 2009,

asked if there was anything else he could document in order to revise

his resume, and complainant said no.

On appeal, complainant resubmits his notice of breach of January 8, 2009.

He makes no argument. In opposition to complainant's appeal, the agency

argues that the FAD should be affirmed.

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).

Complainant has not established that the settlement agreement was

breached. The record shows he was reassigned, as agreed. The agency

initiated the action to reassign complainant within the agreed time,

and went further and completed the reassignment within this time.

Further, the agency assisted complainant with his resume, as agreed.

Complainant, in effect, argues that the agency engaged in bad faith by

not making a real effort to assist him. This is persuasively rebutted

by the affidavit of Mr. D.W.

The FAD is affirmed.

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 6, 2009

__________________

Date

1 Both the notification of personnel action and the computer printout

indicate complainant was reassigned from cost center 52D7 to 52DD.

The settlement agreement provided complainant would be reassigned from

cost center 52D70 to 52DD0. We find that these numbers refer to the

same cost centers.

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0120091443

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120091443