01985242
10-06-1999
Timothy A. Woodington, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Timothy A. Woodington v. Department of the Navy
01985242
October 6, 1999
Timothy A. Woodington, )
Appellant, )
) Appeal No. 01985242
v. ) Agency No. 9700187003
) 9700187816
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant timely filed an appeal with this Commission from a final agency
decision (FAD) dated May 26, 1998, in which the agency determined that it
had not breached the settlement agreement (SA) entered into on January
23, 1998. The appeal is accepted in accordance with the provisions of
EEOC Order No. 906.001, as amended.
ISSUE PRESENTED
The issue presented is whether the agency properly determined that it
did not breach the SA entered into on January 23, 1998.
BACKGROUND
The SA provided, in pertinent part, that:
a. The Complainant shall receive 120 days time in grade with pay as if
he sat in for the temporary position, Supervisory Planner and Estimator
(General), WN-4701-07. The payment of the 120 days shall be calculated
for the period beginning 10 December 1995 forward 120 days.
b. The complainant shall be guaranteed the next temporary promotion
to a non-supervisory position (guaranteed at the level of a GS-11 or
equivalent) within a 15 mile radius, which the parties agree include[s]
the Portsmouth site, for which he is qualified. The position shall be
offered to the Complainant within 90 days of this settlement agreement.
The position offered shall last in duration for at least 120 days.
The Complainant agrees that an independent determination shall be made
by Human Resource Office, Norfolk that he is qualified for the temporary
position that shall be offered. The Complainant also agrees that he
shall accept the first position he is offered and [is] deemed qualified
to perform.
c. The Complainant shall also receive 6 months plus one (1) day time in
grade with no pay to the position of Supervisory Planner and Estimator,
WN-4701-07, beginning 1 July 1997.
In a letter, to the agency, dated April 20, 1998, appellant alleged that
the agency breached the SA. Specifically, appellant challenged the SA
on three grounds: (a) that he was not paid at the GS-11 level for the
temporary GS-11 position that he was assigned to; (b) that he did not
receive six months plus one day time-in-grade with no pay to the position
of Supervisory Planner and Estimator, WN-4071-07, based on a 365 day year,
and that he felt that the Agency's offer was four days short; and (c)
that the six months plus one day time-in-grade paperwork did not begin
on July 1, 1997.
In its FAD, the agency asserted that it did not breach the SA. According
to the agency, the settlement had been honored because: (1) appellant
probably received all the money owed to him for the temporary position;
(2) the agency calculated its paychecks based on a 360 day year, and
thus the six months that appellant received was not four days short;
(3) it was the agency's understanding that appellant wanted the six
months plus one day time in grade shown before or beginning July 1, 1997.
As such they credited him with the six months, beginning December 10,
1996 and running through June 7, 1997, so that he was eligible, under
personnel regulations, to be assigned to the temporary promotion that
he received in March, 1998. The agency emphasized that, in its view,
it did not breach the settlement. In order to "put the matter behind"
it, however, the agency said that it made corrections to the paperwork,
crediting appellant for the four days that he alleged he was due, and
reflecting that the six months plus one day commenced on July 1, 1997.
This appeal followed.
We note that the record contains no evidence that appellant was ever paid
all the money owed to him for the temporary position, given that it was
a GS-11 position for which he was originally paid at the GS-9 rate.<0>
Further, the record contains no evidence that appellant was credited for
the four days that he alleged he was due, or that his record was adjusted
to reflect that the six months plus one day commenced on July 1, 1997,
as the settlement agreement clearly said that it should.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. Section 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties shall be
binding on both parties. That section further provides that if the
complainant believes that the agency has failed to comply with the terms
of a settlement agreement, the complainant shall notify the Director
of Equal Employment Opportunity of the alleged noncompliance with the
settlement agreement within 30 days of when the complainant knew or
should have known of the alleged noncompliance. 29 C.F.R. � 1614.504(a).
The complainant may request that the terms of the settlement agreement
be specifically implemented or request that the complaint be reinstated
for further processing from the point processing ceased. Id.
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, 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 re Chicago & E.I. Ry. Co., 94 F.2d 296 (7th
Cir. 1938). In reviewing settlement agreements to determine if there
is a breach, the Commission is often required to ascertain the intent
of the parties and will generally rely on the plain meaning rule.
Wong v. U.S. Postal Service, EEOC Request No. 05931097 (April 29, 1994)
(citing Hyon O v. U.S. 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, then its meaning must be determined from the
four corners of the instrument without any resort to extrinsic evidence
of any nature. Id. (citing Montgomery Elevator v. Building Engineering
Service, 730 F.2d 377 (5th Cir. 1984)).
We find that the agency clearly breached the settlement agreement
in that the agency admitted that it did not reflect in its paperwork
that the six months plus one day time in grade began on July 1, 1997.
Further the agency has provided no evidence to show that any of the
efforts that it purports to have made to "put the matter behind" them
have actually been accomplished. There is no evidence that appellant was
credited for four days, that his paperwork now shows the six plus months
beginning on July 1, 1997, or that he was ever paid all the money that
he was owed for the temporary GS-11 position that he held. Since it is
the agency's burden to demonstrate that they have attempted to cure the
matter once a breach is shown, we find that they have not done so.
CONCLUSION
Based on the record in this case, we find that the agency's decision
was improper and is REVERSED.
ORDER
The agency is ORDERED to take the following actions:
1. The agency shall comply in full with paragraphs a,b, and c of the
settlement agreement. The agency shall submit documentation regarding
implementation of these paragraphs to appellant.
2. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall submit a report of compliance, with proof of
all relevant actions taken regarding implementation of paragraphs a, b,
and c, to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Oct. 6, 1999
______________ ______________________________
Date Carlton Hadden, Acting Director
Office of Federal Operations
01 In a June 27, 1998 correspondence from appellant he does imply that
at some point he was paid some or all of the money that he was entitled
to, as he now asserts that the agency owes him interest for the delay in
payment for two pay periods at the GS-11 level. It is still unclear
whether appellant has been paid these funds or not.